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Jon M. Sands 

Federal Public Defender 

District of Arizona 

Mridula S. Raman (NY No. 5103528) 

Sara Chimene-Weiss (MA No. 691394) 

Assistant Federal Public Defenders 

850 West Adams Street, Suite 201 

Phoenix, Arizona 85007 

mridula_raman@fd.org 

sara_chimene-weiss@fd.org 

602.382.2816 Telephone 

602.889.3960 Facsimile 

Counsel for Petitioner 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Alvie Copeland Kiles, 

Petitioner, 

vs. 

Charles L. Ryan, et al., 

Respondents. 

No. CV-17-04092-PHX-GMS 

DEATH-PENALTY CASE 

PETITION FOR WRIT OF HABEAS CORPUS 

28 U.S.C. § 2254 

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Table of Contents

I. INTRODUCTION ......................................................................................... 1

II. FACTUAL HISTORY .................................................................................. 1

III. STATE COURT PRESUMPTION OF CORRECTNESS ............................ 6

IV. PROCEDURAL STATUS OF CLAIMS AND EXHAUSTION ................. 7

V. RIGHT TO AMEND ..................................................................................... 8

VI. AEDPA IS UNCONSTITUTIONAL ............................................................ 9

A. AEDPA unconstitutionally suspends the writ of habeas corpus. ........ 9

B. AEDPA violates the separation-of-powers doctrine. ........................ 10

C. Conclusion. ........................................................................................ 11

Claim One .............................................................................................................. 12

Representation at trial was so marred by conflicts, misrepresentations, and 

procedural violations that Kiles was denied effective counsel and fair and 

reliable capital proceedings. ................................................................................... 12

A. Kiles received ineffective assistance of counsel from the start. ....... 12

1. Greg Clark’s appointment did not satisfy Arizona’s 

standards for appointment as capital defense counsel. ........... 13

2. Clark failed to establish an attorney-client relationship with 

Kiles. ....................................................................................... 16

3. Clark’s lack of communication and deficient performance 

compelled co-counsel to withdraw. ........................................ 22

4. Clark blamed others for his irreparably fractured 

relationship with Kiles. ........................................................... 24

5. Kiles filed a Complaint in Special Action with the Arizona 

Supreme Court requesting new counsel.................................. 28

6. After Kiles’s guilt-phase proceedings, Kiles continued to 

request new counsel to represent him at the penalty phase. ... 30

7. Co-counsel represented Kiles while under a conflict of 

interest. .................................................................................... 31

8. Counsel’s conflicts and deficient performance undermined 

the defense team and mitigation work in preparation for 

Kiles’s penalty-phase proceedings. ......................................... 35

B. Lead counsel’s lack of qualifications and affirmative 

misrepresentations of those qualifications deprived Kiles of his 

right to due process and qualified counsel. ....................................... 38

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1. Lead counsel did not satisfy Arizona’s standards for 

appointment as capital defense counsel, depriving Kiles of 

his due-process rights. ............................................................. 39

2. Lead counsel and co-counsel misrepresented Clark’s 

qualifications to the court, denying the court the ability to 

protect Kiles’s due process rights. .......................................... 41

C. Kiles’s counsel were ineffective due to a conflict of interest,

denying Kiles his right to competent and un-conflicted 

representation. ................................................................................... 43

D. The irreparably fractured relationship between Kiles and Clark 

adversely affected the representation Kiles received. ....................... 46

E. The contract structure under which Kiles’s counsel were 

appointed created a financial conflict of interest. ............................. 48

F. The state post-conviction court’s decision that Kiles failed to state 

a colorable claim for relief was unreasonable and does not bar 

relief. .................................................................................................. 53

G. Taken individually and together, these conflicts plaguing counsel, 

following from an initial denial of a liberty interest, resulted in a 

conviction and sentencing that cannot withstand constitutional 

scrutiny. ............................................................................................. 54

Claim Two .............................................................................................................. 55

Counsel’s ineffective assistance in jury selection at the guilt-phase proceedings 

deprived Kiles of his rights to counsel, a fair trial, an impartial jury, due 

process, and equal protection. ................................................................................ 55

A. A defendant has a Sixth Amendment right to the effective 

assistance of counsel during voir dire. .............................................. 55

B. Counsel were deficient in failing to adequately or meaningfully

question prospective jurors to ensure a fair and impartial jury, thereby prejudicing Kiles. ................................................................. 57

1. Counsel were deficient in failing to adequately screen 

prospective jurors through questionnaires. ............................. 58

2. Counsel were deficient in failing to question those 

prospective jurors who were biased in favor of the death 

penalty. .................................................................................... 60

3. Counsel were deficient in failing to question jurors who 

were likely biased due to past personal experiences. ............. 61

4. Counsel were deficient in failing to question prospective 

jurors about their knowledge of Kiles’s previous 

conviction. ............................................................................... 64

5. Counsel were deficient in failing to meaningfully question 

jurors about their exposure to Kiles’s case in the media. ....... 65

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C. Counsel failed to challenge the denial of a fair cross-section of the 

community in the venire. ................................................................... 67

D. Counsel failed to make a record as to the reasons underlying the 

removal of many prospective jurors. ................................................. 68

Claim Three ............................................................................................................ 69

Kiles was denied effective assistance of counsel at his guilt-phase proceedings 

because counsel failed to investigate, develop, and present critical evidence, 

among other significant errors. .............................................................................. 69

A. Background on guilt-phase proceedings. .......................................... 70

B. A defendant has a Sixth Amendment right to the effective 

assistance of counsel at guilt-phase proceedings. ............................. 77

C. Trial counsel were ineffective for failing because of their 

constitutionally inadequate investigation to present a reasonable 

defense for the death of Gunnel. ....................................................... 79

1. Trial counsel performed deficiently by failing to conduct a 

reasonable investigation; that performance resulted in them 

settling on a legally unsound and ill-considered guilt-phase 

strategy. ................................................................................... 80

2. Had trial counsel conducted an adequate investigation, 

counsel would have been able to develop a persuasive 

defense strategy. ...................................................................... 90

3. Trial counsel’s deficient performance prejudiced Kiles. ...... 107

D. Counsel were ineffective for failing to object to Kiles’s shackling. ......................................................................................................... 112

E. Counsel rendered ineffective assistance during the defense’s 

opening statement. ........................................................................... 115

F. Counsel were ineffective for failing to effectively cross-examine 

crucial State’s witnesses on matters relating to whether Gunnel’s 

death was premeditated. .................................................................. 117

G. Counsel were ineffective for stipulating to the admission of 

hearsay statements from Gunnel at the guilt-phase proceedings. ... 121

H. Counsel were ineffective for failing to object to the worst of the 

gruesome photographs repeatedly displayed at trial. ...................... 123

I. Counsel rendered ineffective assistance by failing to request 

critical jury instructions. .................................................................. 125

J. Counsel provided ineffective assistance when they failed to object 

to numerous aspects of the State’s closing argument. .................... 129

K. Counsel also rendered ineffective assistance in failing to ensure 

that a record was made of key parts of the guilt-phase 

proceedings. ..................................................................................... 134

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L. Counsel’s numerous errors, individually and cumulatively, 

undermined the reliability of Kiles’s guilt-phase proceedings. ...... 135

M. The state post-conviction court’s decision that Kiles failed to state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. ............................................................................................... 136

N. Conclusion. ...................................................................................... 140

Claim Four ........................................................................................................... 140

Kiles’s counsel’s ineffective assistance in jury selection at the penalty phase 

of trial deprived Kiles of his rights to counsel, a fair trial, an impartial jury, 

reliable sentencing proceedings, due process, and equal protection. .................. 140

A. Despite having won the right to question prospective jurors on 

specific types of mitigation, counsel failed to do so, thereby 

prejudicing Kiles. ............................................................................ 143

B. Counsel deficiently failed to question a number of seated jurors 

about their pro-death sentence biases, thereby prejudicing Kiles. .. 147

C. Counsel deficiently altogether failed to question eight seated 

jurors, thereby prejudicing Kiles. .................................................... 148

D. Counsel failed to question adequately and to challenge for cause 

jurors who should have been disqualified for cause. ...................... 150

E. Counsel failed to rehabilitate prospective jurors who expressed

discomfort with the death penalty but who still could have 

properly served. ............................................................................... 152

F. Counsel failed to challenge the prosecutor’s discriminatory use of 

peremptory strikes to exclude an African-American prospective 

juror. ................................................................................................ 155

G. Counsel failed to challenge the denial of a fair cross-section of the 

community in the venire. ................................................................. 158

H. Counsel failed to make a record as to the reasons underlying the 

removal of many prospective jurors. ............................................... 159

Claim Five ............................................................................................................ 160

Kiles was denied effective assistance of counsel at his aggravation-phase 

proceedings because counsel failed to adequately challenge the alleged 

aggravating circumstances and otherwise defend against a death sentence. ....... 160

A. Background on aggravation-phase proceedings. ............................ 160

B. Trial counsel has a duty to make every effort to avoid a death 

sentence, including by investigating and contesting the 

aggravating circumstances alleged against Kiles. ........................... 166

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C. Counsel were ineffective for failing to effectively challenge the 

(F)(2) aggravating circumstance, especially as Kiles’s prior 

aggravated assault conviction was an invalid basis for that 

circumstance. ................................................................................... 167

1. Kiles’s 1986 conviction for aggravated assault does not 

qualify as a prior violent felony for the purposes of the 

(F)(2) aggravator. .................................................................. 168

2. Counsel performed deficiently and prejudiced Kiles in 

failing to challenge the 1986 conviction as a basis for the 

(F)(2) aggravator. .................................................................. 172

D. Counsel were ineffective for failing to investigate and adequately 

challenge the (F)(6) “especially heinous, cruel or depraved” 

aggravating circumstance. ............................................................... 175

1. Counsel unreasonably failed to investigate in preparation 

for a challenge to “cruelty” for the purposes of the (F)(6) 

aggravating circumstance...................................................... 176

2. Because of the insufficient investigation and lack of 

preparation, counsel failed to mount an adequate challenge 

to the (F)(6) aggravator, thereby prejudicing Kiles. ............. 181

E. Counsel performed deficiently and prejudiced Kiles by failing to 

frontload mitigation at the aggravation phase. ................................ 184

F. Counsel were ineffective for failing to properly object to Kiles’s 

restraints. ......................................................................................... 187

G. Counsel were ineffective for failing to object to, or to request a 

curative instruction for, the prosecutor’s misconduct in opening 

and closing statements. .................................................................... 189

H. Counsel were ineffective for failing to object to the trial court’s 

erroneous instruction defining reasonable doubt. ........................... 192

I. Counsel were ineffective for failing to ensure that a complete 

record was made of aggravation-phase proceedings. ...................... 192

J. Counsel’s numerous errors, individually and cumulatively, 

undermined the reliability of Kiles’s aggravation phase. ............... 193

K. The state post-conviction court’s decision that Kiles did not state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. ............................................................................................... 194

L. Conclusion. ...................................................................................... 196

Claim Six .............................................................................................................. 196

Kiles was denied effective assistance of counsel at his mitigation phase when 

his counsel failed to investigate and present powerful mitigating evidence, 

among other significant errors. ............................................................................ 196

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A. A capital defendant must receive an individualized sentencing 

after a full and fair consideration by the jury. ................................. 196

B. Kiles’s personal history. .................................................................. 197

C. A defendant’s right to a full mitigation investigation and 

presentation necessitates effective counsel at the mitigation phase 

of trial. ............................................................................................. 210

D. Lead counsel’s derogation of his duties and the resulting team 

dysfunction led to a deficient mitigation investigation and 

inadequate presentation. .................................................................. 212

1. Lead counsel did not assist in the mitigation-phase 

investigation, leaving Kiles with one attorney in violation 

of prevailing professional norms. ......................................... 212

2. Counsel failed to request a mitigation specialist or to begin 

a mitigation investigation upon appointment. ...................... 213

3. Counsel’s failure to be involved in the investigation and the 

subsequent resignation of the mitigation specialist resulted 

in a disjointed mitigation investigation. ................................ 214

E. Trial counsel were ineffective for failing to reasonably 

investigate, develop, and present important mitigation evidence. .. 219

1. Counsel failed to properly investigate, develop, and present 

mitigation evidence pertaining to lay witnesses. .................. 220

2. Counsel failed to retain the necessary experts to properly 

investigate and explain several avenues of mitigation. ........ 232

3. Counsel performed deficiently in failing to provide the 

experts she did retain with complete and accurate 

information. ........................................................................... 240

4. Counsel’s unreasonable investigation and failure to provide 

experts with critical information resulted in the jury hearing 

a constitutionally inadequate mitigation presentation. ......... 249

5. Counsel provided ineffective assistance in failing to 

adequately investigate and address the State’s evidence and 

arguments in mitigation rebuttal. .......................................... 256

6. Counsel’s mitigation-phase closing argument constituted 

deficient performance that prejudiced Kiles. ........................ 264

7. Counsel provided ineffective assistance when she failed to 

object to numerous aspects of the State’s closing argument.

 ............................................................................................... 267

8. Counsel’s deficient performance at the mitigation phase 

prejudiced Kiles. ................................................................... 270

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F. Counsel provided ineffective assistance in failing to request a

special verdict form listing which mitigating circumstances the

jury found proven. ........................................................................... 273

G. Counsel were ineffective in failing to object to juror 

questionnaires and jury instructions that primed the jury to find 

that death was the appropriate sentence. ......................................... 274

H. The cumulative effect of trial counsel’s many instances of 

deficient performance deprived Kiles of his right to counsel at the 

mitigation phase and resulted in an unreliable sentencing 

proceeding. ...................................................................................... 277

I. The state post-conviction court’s decision that Kiles did not state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. ............................................................................................... 278

J. Conclusion ....................................................................................... 281

Claim Seven ......................................................................................................... 281

The trial court’s numerous errors during the guilt phase of trial violated Kiles’s 

constitutional rights. ............................................................................................. 281

A. The trial court erred by not appointing qualified, un-conflicted 

counsel, violating Kiles’s rights under the Sixth and Fourteenth 

Amendments. ................................................................................... 281

1. The trial court erred by failing to conduct an appropriate 

inquiry into counsel’s conflicts. ............................................ 281

2. The trial court erred by failing to appoint qualified, 

un-conflicted counsel. ........................................................... 283

B. The trial court denied Kiles a fair trial by denying his motion for 

a change of venue. ........................................................................... 284

1. Kiles’s trial was marked by pervasive, prejudicial media 

coverage. ............................................................................... 285

2. Clearly established federal law required a change of venue 

to ensure Kiles’s due process rights. ..................................... 286

3. As the media attention prevented Kiles from receiving a 

fair trial, the trial court erred in denying the motion for 

change of venue. ................................................................... 287

C. The trial court erred by not dismissing the venire after a highly 

prejudicial statement poisoned the jury pool. ................................. 289

1. A prospective juror disclosed highly prejudicial 

information before the venire. .............................................. 289

2. The trial court erred by failing to grant the motion to 

dismiss the venire. ................................................................. 290

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D. The trial court’s admission of an excessively gruesome 

photograph during Kiles’s trial resulted in the denial of a fair trial 

and due process. .............................................................................. 292

1. The trial court failed to exclude an irrelevant and gruesome 

autopsy photograph during the guilt-phase proceedings. ..... 292

2. The trial court’s admission of an excessively gruesome 

photograph to the jury was violative of due process and 

undermined the fairness of the proceedings. ........................ 293

E. The trial court declined to give the jury instructions to which Kiles 

was constitutionally entitled. ........................................................... 294

1. The trial court erred in failing to instruct the jury that 

premeditation requires actual reflection. .............................. 295

2. The trial court erred in denying Kiles an intoxication 

defense, which he was constitutionally entitled to present. .. 296

3. The trial court erred in improperly instructing the jury on 

the definition of “reasonable doubt.” .................................... 299

F. The trial court unconstitutionally required that Kiles be physically 

restrained at the guilt phase. ............................................................ 300

G. The trial court failed to make a complete record of the guilt-phase 

proceeding in violation of Kiles’s constitutional rights. ................. 302

H. The trial court violated Kiles’s right to be free from double 

jeopardy and a reliable sentencing determination. .......................... 303

I. The cumulative effect of these trial-court errors prejudiced Kiles. ......................................................................................................... 304

Claim Eight .......................................................................................................... 305

The trial court’s numerous errors during the penalty phase of trial violated 

Kiles’s constitutional rights. ................................................................................ 305

A. The trial court unconstitutionally required that Kiles be physically 

restrained at the penalty phase. ....................................................... 306

B. The trial court violated Kiles’s constitutional rights during his 

penalty-phase voir dire. ................................................................... 308

1. The trial court should not have struck Prospective Juror 56 

based on her views of the death penalty, as she evidenced 

her ability to be fair and impartial. ....................................... 308

2. The trial court should have struck Prospective Jurors 78 and 

82 for cause based on their views of the death penalty. ....... 310

3. The trial court erred in permitting statements in voir dire 

and on the juror questionnaire that implied that, if 

sentenced to life in prison, Kiles would be eligible for 

parole in 25 years. ................................................................. 312

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C. The trial court erred in denying defense counsel’s motion for a

directed verdict on the “especially heinous, cruel or depraved”

aggravating circumstance. ............................................................... 314

D. The trial court erred in not striking the (F)(8) aggravator as 

unconstitutionally vague. ................................................................ 316

E. The trial court denied Kiles’s due-process rights by admitting a 

gruesome and unduly prejudicial photograph. ................................ 317

F. The trial court unconstitutionally permitted the victims’ attorney 

to file pleadings, including a requested jury instruction. ................ 318

G. The trial court unconstitutionally permitted the introduction of 

victim-impact evidence. .................................................................. 318

H. The trial court unconstitutionally permitted the State to ask 

witnesses at trial about statements contained in the reports of

experts who testified at the first trial but not at the second trial, in 

violation of Kiles’s rights. ............................................................... 321

I. The trial court unconstitutionally failed to provide the jury with a 

special verdict form listing the specific mitigating factors they 

found proven, violating Kiles’s rights. ............................................ 323

J. The trial court unconstitutionally failed to make a complete record 

at trial, in violation of Kiles’s rights. .............................................. 325

K. The cumulative effect of these trial-court errors prejudiced Kiles. ......................................................................................................... 326

Claim Nine ........................................................................................................... 326

Kiles was deprived of his right to due process and a fair trial because the 

prosecutor engaged in pervasive misconduct. ..................................................... 326

A. The prosecutor committed misconduct in the guilt-phase 

proceedings. ..................................................................................... 328

1. The prosecutor repeatedly mischaracterized testimony, 

made speculative arguments, and used inflammatory 

language in its guilt-phase opening and closing. .................. 329

2. The prosecutor mischaracterized the scientific evidence 

during the guilt phase. ........................................................... 331

3. The prosecutor improperly testified on the record during 

the guilt phase. ...................................................................... 332

4. The prosecutor failed to disclose information on one of its 

witnesses. .............................................................................. 333

5. The prosecutor improperly dehumanized the defendant in 

the guilt-phase closing. ......................................................... 333

B. The prosecutor committed further misconduct in the penaltyphase proceedings. .......................................................................... 335

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1. The prosecutor improperly struck a juror on the basis of 

race during voir dire. ............................................................. 335

2. The prosecutor improperly vouched for witnesses and 

evidence. ............................................................................... 336

3. The prosecutor continued to advance an unsupported 

theory of the crime through improper questioning of expert 

witnesses. .............................................................................. 337

4. The prosecutor used inflammatory language to influence 

the jury. ................................................................................. 339

5. The prosecutor’s theory of the crime was not reasonably 

inferred from the evidence. ................................................... 339

C. The prosecutor’s performance rendered the trial fundamentally 

unfair and violated Kiles’s substantive rights. ................................ 340

Claim Ten ............................................................................................................. 341

Juror misconduct at Kiles’s guilt- and penalty-phase proceedings deprived 

Kiles of his rights to a fair and impartial jury, the assistance of counsel, 

confrontation, equal protection, and a fair trial. .................................................. 341

A. Jurors considered extraneous evidence at Kiles’s guilt-phase 

proceedings. ..................................................................................... 344

B. Jurors committed misconduct in multiple ways at Kiles’s penalty- phase proceeding. ............................................................................ 345

1. Jurors’ deliberations were informed by extraneous 

influences. ............................................................................. 345

2. Jurors slept through the proceedings. ................................... 347

3. Jurors improperly considered extraneous and incorrect 

information about race and criminality during their 

deliberations. ......................................................................... 349

4. Jurors curtailed their deliberations or compromised their 

votes because one member of the jury was gravely ill. ........ 351

C. Juror misconduct throughout the course of proceedings violated 

Kiles’s right to due process and a fair trial. .................................... 352

Claim Eleven ........................................................................................................ 353

Kiles’s appellate counsel failed to provide effective assistance. ......................... 353

A. Appellate counsel focused his efforts on a claim that was not 

cognizable on appeal. ...................................................................... 355

B. Appellate counsel was ineffective for failing to raise meritorious 

claims. .............................................................................................. 358

1. Appellate counsel failed to challenge the child-abuse 

convictions. ........................................................................... 358

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2. Appellate counsel failed to challenge the trial court’s denial 

of a mistrial due to prosecutorial misconduct. ...................... 361

3. Appellate counsel failed to adequately brief his challenge 

to the improperly admitted gruesome photographs. ............. 364

4. Appellate counsel failed to challenge the trial court’s error 

in allowing the State to question statements made to 

defense experts in a prior trial. .............................................. 365

5. Appellate counsel failed to present an argument for 

leniency on independent review by the Arizona Supreme 

Court. ..................................................................................... 366

6. Appellate counsel failed to adequately challenge the (F)(2) 

aggravating circumstance...................................................... 367

7. Appellate counsel failed to challenge Kiles’s shackling 

during his proceedings. ......................................................... 368

C. Conclusion. ...................................................................................... 368

Claim Twelve ....................................................................................................... 369

The Arizona Supreme Court’s decision affirming Kiles’s death sentence 

violated Kiles’s constitutional rights. .................................................................. 369

A. The Arizona Supreme Court violated Kiles’s due process rights 

in its review of the prior-conviction aggravating circumstance. ..... 371

1. The Arizona Supreme Court denied Kiles his right to due 

process in upholding the prior-conviction aggravating 

circumstance.......................................................................... 371

2. The Arizona Supreme Court violated Kiles’s rights by 

summarily determining that the invalidation of one prior 

conviction was immaterial. ................................................... 374

B. The Arizona Supreme Court denied Kiles meaningful appellate 

review when it arbitrarily upheld the (F)(6) aggravating factor. .... 376

C. The Arizona Supreme Court denied meaningful appellate review 

by inflating the weight of the (F)(8) aggravating circumstance. .... 381

D. The Arizona Supreme Court denied Kiles his constitutionally 

protected right to meaningful independent review when it ignored 

many of his mitigating factors and mischaracterized others. .......... 383

E. The Arizona Supreme Court’s decision denied Kiles meaningful 

appellate review by irrationally discounting and failing to give 

effect to the mitigating circumstances it did acknowledge. ............ 384

F. The Arizona Supreme Court’s individual and cumulative errors 

deprived Kiles of his constitutional rights. ..................................... 387

G. This Court may review this claim de novo. .................................... 388

Claim Thirteen ..................................................................................................... 388

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Kiles’s jury-imposed death sentence unconstitutionally relied upon two invalid 

prior convictions. ................................................................................................. 388

Claim Fourteen ..................................................................................................... 391

Kiles’s second state post-conviction counsel were constitutionally ineffective. 391

A. Post-conviction counsel were ineffective........................................ 393

1. Post-conviction counsel failed to adequately raise claims. .. 393

2. Post-conviction counsel failed to adequately develop 

mitigation evidence with both lay and expert witnesses. ..... 394

3. Post-conviction counsel failed to file a reply. ...................... 399

B. Post-conviction counsel’s ineffectiveness excuses any procedural 

default of claims raised throughout this Petition. ........................... 400

C. Post-conviction counsel’s ineffectiveness entitles Kiles to relief. .. 403

Claim Fifteen ........................................................................................................ 405

Trial counsel was ineffective for failing to file a motion to remand because of 

errors rendering the grand-jury proceedings unconstitutional. ............................ 405

A. Counsel planned to file a motion to remand to address 

improprieties with the grand-jury session and the resulting 

indictment. ....................................................................................... 407

B. Counsel was deficient in failing to file a motion to remand based 

on the fact that a grand juror had prior knowledge of the facts of 

the crime. ......................................................................................... 408

C. Counsel was deficient in failing to file a motion to remand based 

on the fact that the State knew that Imojean Kiles was an 

incompetent witness during her grand-jury testimony. ................... 410

D. Counsel was ineffective for failing to file a motion to remand 

because Kiles was denied his right to a grand jury free from 

discrimination. ................................................................................. 411

E. Conclusion. ...................................................................................... 414

Claim Sixteen ....................................................................................................... 415

Counsel were ineffective for failing to ensure that critical portions of the record 

were preserved and recorded. .............................................................................. 415

A. Trial counsel failed to preserve evidence needed for proper 

consideration of Kiles’s claims on appeal. ...................................... 416

1. Trial counsel denied Kiles’s right to be present at 

unrecorded proceedings. ....................................................... 416

2. Trial counsel failed to record and retain evidence during 

voir dire. ................................................................................ 417

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3. Trial counsel failed to ensure bench conferences were on 

the record. .............................................................................. 418

4. Trial counsel failed to ensure conferences on jury 

instructions were on the record. ............................................ 419

B. Counsel’s ineffectiveness for failing to ensure a complete record 

violated Kiles’s rights. ..................................................................... 420

Claim Seventeen .................................................................................................. 422

Capital punishment is per se cruel and unusual. .................................................. 422

Claim Eighteen ..................................................................................................... 425

Arizona’s death-penalty statute unconstitutionally serves no deterrent purpose, 

exceeds any legitimate retributive aim, is without penological justification, and 

results in the gratuitous infliction of suffering. ................................................... 425

Claim Nineteen .................................................................................................... 428

Arizona’s capital-sentencing scheme unconstitutionally does not genuinely 

narrow the murder cases eligible for the death penalty and fails to channel the 

discretion of the sentencing jury. ......................................................................... 428

Claim Twenty ....................................................................................................... 432

Arizona’s capital-sentencing scheme unconstitutionally affords the prosecutor 

unlimited discretion to seek the death penalty. .................................................... 432

Claim Twenty-One ............................................................................................... 433

Arizona’s capital-sentencing scheme is unconstitutional because it does not 

require the State to prove, or the jury to find beyond a reasonable doubt, that 

the aggravating factors outweighed the mitigating circumstances. ..................... 433

A. The trial court’s penalty-phase instructional error regarding the 

burden and standard of proof, derived from Arizona’s 

unconstitutional statute, violated Kiles’s rights under clearly

established precedent. ...................................................................... 434

B. If Hurst instead announced a new rule of constitutional law, it is 

retroactive to cases on collateral review. ........................................ 437

C. Conclusion ....................................................................................... 438

Claim Twenty-Two .............................................................................................. 439

Arizona’s capital-sentencing scheme unconstitutionally requires a defendant 

to affirmatively prove that the jury should spare his life. .................................... 439

Claim Twenty-Three ............................................................................................ 440

Arizona’s capital-sentencing scheme unconstitutionally fails to require the 

cumulative consideration of mitigation. .............................................................. 440

Claim Twenty-Four .............................................................................................. 442

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Arizona’s death-penalty statute is unconstitutional because it fails to require 

the jury to make specific findings as to each mitigating circumstance. .............. 442

Claim Twenty-Five .............................................................................................. 444

Arizona’s capital-sentencing scheme unconstitutionally limits the jury’s full 

consideration of mitigation by requiring that mitigating circumstances be 

proven by a preponderance of the evidence. ........................................................ 444

Claim Twenty-Six ................................................................................................ 445

Arizona’s capital-sentencing scheme unconstitutionally fails to set forth 

objective standards to guide the sentencer in weighing the aggravating 

circumstances against the mitigating circumstances. .......................................... 445

Claim Twenty-Seven ........................................................................................... 446

Arizona’s capital-sentencing scheme unconstitutionally denies capital 

defendants the benefit of proportionality review of their sentences. ................... 446

Claim Twenty-Eight ............................................................................................. 447

Arizona’s capital-sentencing scheme unconstitutionally discriminates against 

poor, young, African-American male defendants. ............................................... 447

Claim Twenty-Nine ............................................................................................. 450

The death qualification of Kiles’s guilt- and penalty-phase juries was 

unconstitutional. ................................................................................................... 450

Claim Thirty ......................................................................................................... 453

The “especially heinous, cruel or depraved” aggravating circumstance is 

unconstitutionally vague. ..................................................................................... 453

Claim Thirty-One ................................................................................................. 457

Arizona’s prior felony conviction aggravating circumstance is 

unconstitutionally vague. ..................................................................................... 457

Claim Thirty-Two ................................................................................................ 459

Kiles is innocent of first-degree murder and of the death penalty. ...................... 459

Claim Thirty-Three .............................................................................................. 461

Kiles’s death sentence constitutes an impermissible violation of the Ex Post 

Facto Clause. ........................................................................................................ 461

Claim Thirty-Four ................................................................................................ 463

Executing Kiles after more than 28 years on death row violates the Eighth and 

Fourteenth Amendments. ..................................................................................... 463

Claim Thirty-Five ................................................................................................ 467

Due process requires that this Court re-evaluate Kiles’s death sentence in light 

of the significant changes to Kiles’s circumstances in the 12 years since he was 

sentenced. ............................................................................................................. 467

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Claim Thirty-Six .................................................................................................. 470

Executing Kiles is unconstitutional because he has a serious mental illness. ..... 470

Claim Thirty-Seven .............................................................................................. 474

Subjecting Kiles to execution in Arizona will deny his fundamental human 

rights under binding international law norms. ..................................................... 474

Claim Thirty-Eight ............................................................................................... 479

Kiles will be unable to receive a fair clemency process in Arizona. ................... 479

Claim Thirty-Nine ................................................................................................ 480

Kiles’s convictions and sentences must be vacated because of the cumulative 

prejudicial effect of all of the errors in this case. ................................................ 480

PRAYER FOR RELIEF ...................................................................................... 482

Certificate of Service ........................................................................................... 484

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I. INTRODUCTION 

Pursuant to 28 U.S.C. § 2254, Alvie Copeland Kiles respectfully petitions 

this Court for a writ of habeas corpus. He is currently in the custody of Respondents, 

who are detaining him pursuant to judgments and sentences of the Arizona state 

courts. In 2000, Kiles was convicted of three counts of first-degree murder and two 

counts of child abuse. He was subsequently sentenced to death for the first-degree 

murder of Valerie Gunnel and to life imprisonment on each of the remaining counts. 

Through this Petition, Kiles challenges his first-degree murder conviction and death 

sentence for the death of Valerie Gunnel and his convictions and sentences on the 

child-abuse counts, as these convictions and sentences were obtained in violation 

of his rights under the Constitution, laws, and treaties of the United States. He 

requests that this Court grant a writ of habeas corpus and any other appropriate 

relief from these unconstitutional convictions and sentences.1

 

II. FACTUAL HISTORY 

In February 1989, Alvie Kiles was living with his girlfriend, Valerie Gunnel, 

and her two daughters, five-year-old Shemaeah Gunnel and nine-month-old 

LeCresha Kirklin. (Tr. July 17, 2000 at 152; Tr. July 12, 2000 at 5–6, 32.)2

 The four 

 

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 While Kiles maintains that he is factually innocent of the crimes underlying his 

first-degree murder convictions for the deaths of Shemaeah Gunnel and LeCresha 

Kirklin, he recognizes the risk in seeking relief from those convictions—

convictions for which he was not sentenced to death—and therefore declines at 

present to do so. 

2

 When counsel is referring to the state-court record, transcripts are designated “Tr.” 

followed by the relevant date and page number. Indexed documents from Case No. 

CR89-15444 supplied by the Arizona Supreme Court as part of the record on appeal 

are designated “ROA,” followed by the docket number. If the indexed document 

appears only in Case No. CR89-15577, the document is designated “CR89-15577 

ROA,” followed by the docket number. Exhibits from the 1989 trial, the 1990 

sentencing proceeding, the 2000 guilt phase, and 2006 penalty phase are designated, 

respectively, “1989 State [or Def.] Trial Ex.,” “1990 State [or Def.] Trial Ex.,” 

“2000 Trial Ex.,” and “2006 Trial Ex.,” followed by the exhibit number. Direct 

appeal documents from Case No. CR-90-0106-AP supplied by the Arizona 

Supreme Court are designated “DA1,” followed by the docket number. Direct 

appeal documents from Case No. CR-06-0240-AP supplied by the Arizona 

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of them were staying at Gunnel’s apartment in a complex on South First Avenue in 

Yuma, Arizona. (Tr. July 17, 2000 at 152; Tr. July 12, 2000 at 5–6, 32.) On 

February 9, 1989, Gunnel visited Kiles’s mother, Imojean Kiles, at her workplace; 

Gunnel claimed that Kiles had stolen her food stamps and that she had no money to 

feed her children. (Tr. July 11, 2000 at 32.) Kiles later testified that he and Gunnel 

devised a plan for him to sell the food stamps to get dope for them to use together. 

(Tr. July 17, 2000 at 155–56.) Imojean gave Gunnel twenty dollars to buy food and 

told Gunnel to “leave little Alvie alone.” (Tr. July 17, 2000 at 145–46.) 

At some point during the night of February 9, 1989, or early the following 

morning, Gunnel and her children were killed. Kiles later testified that he had an 

argument with Gunnel; she had slapped him once, and when she slapped him a 

second time, he grabbed a tire jack that was on the ground and killed her. (Tr. July 

17, 2000 at 164–65.) Kiles testified that the argument began when he returned home 

intoxicated with drugs and alcohol, having used all of the drugs that he had acquired 

for him and Gunnel to use together. (Tr. July 17, 2000 at 157–58.) 

He disclaimed responsibility for the deaths of Shemaeah and LeCresha, 

testifying that he saw his friend Kale Johnson swinging the jack at the children 

while they were on a bed. (Tr. July 17, 2000 at 170.) Kiles further testified that 

Johnson and another friend took Kiles’s car to dispose of the children’s bodies, 

while Kiles remained in the apartment to try to clean up the crime scene. (Tr. July 

 

Supreme Court are designated “DA2,” followed by the docket number. Documents 

from the first and second state post-conviction proceedings are also designated 

“ROA,” followed by the docket number. Exhibits to the first post-conviction 

petition are labeled “ROA 225 Ex.,” followed by the exhibit number. Exhibits from 

the second post-conviction petition are labeled “PFR2,” with the appropriate docket 

and exhibit number, as these exhibits were re-filed during the second petition for 

review proceedings before the Arizona Supreme Court. Documents from the 1996 

and 1997 petition for review proceedings are labeled “PFR1,” followed by the 

docket number. Documents from the petition for review proceedings under Case 

No. CR-16-0072 are designated “PFR2,” followed by the docket number. Special 

Action documents are designated by the case number, name of pleading, date, and 

page number. 

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17, 2000 at 172–73.) 

Around 9:00 a.m. on February 10, 1989, Kiles knocked on the door of the 

home of his brother-in-law, Larry Hawkins. (Tr. July 13, 2000 at 5–7.) As Hawkins 

had just finished a 24-hour shift at work, he declined to answer the door, but he did 

notice that Kiles had driven over in Gunnel’s car. (Tr. July 13, 2000 at 6–7.) Kale 

Johnson, who later claimed to have nothing to do with the killings, said that he 

encountered Kiles, who was seated in Gunnel’s car, at Carver Park on the afternoon 

of February 10, 1989. (Tr. July 14, 2000 at 74–75, 128–29.) There, according to 

Johnson’s testimony, Kiles confessed, “I killed Valerie.” (Tr. July 14, 2000 at 76–

77.) Johnson then accompanied Kiles to Gunnel’s apartment, where Johnson 

observed “Valerie lying on the floor.” (Tr. July 14, 2000 at 79–82.) Johnson 

testified that he only entered Gunnel’s apartment, inspected her body, and then left 

(Tr. July 14, 2000 at 130), but he was later discovered with blood on his Converse 

shoes, clothing, and hands (Tr. July 14, 2000 at 132–33; Tr. July 17, 2000 at 78). 

Johnson admitted that he may have wiped his hands on his pants and the inside 

frame of Gunnel’s apartment door after getting blood on them. (Tr. July 14, 2000 

at 134–35; Tr. July 17, 2000 at 35; PFR2 Dkt. 20 Ex. 1 at 7.) 

On the evening of February 10, 1989, Kiles returned to Larry Hawkins’s 

house with Johnson. (Tr. July 13, 2000 at 9–10; Tr. July 14, 2000 at 91–92.) 

According to Hawkins, Kiles informed him that he had “killed Valerie and possibly 

her children too.” (Tr. July 13, 2000 at 12.) Hawkins asked Kiles, “Why the 

children?” and said that Kiles that it was because they had seen him. (Tr. July 13, 

2000 at 13). Hawkins testified that Kiles was high when he arrived at Hawkins’s 

apartment and that he was still doing cocaine at Hawkins’s apartment when he 

shared this information. (Tr. Mar. 22, 2006 at 47–48, 69.) Hawkins described Kiles 

as “not himself. He had a crazed look in his eyes, and was rambling and, at times, 

incoherent. . . . He was acting really crazy and paranoid.” (ROA 225 Ex. 38 at 2–3; 

Tr. Mar. 22, 2006 at 66–67.) Four or five days later, Hawkins authored a letter to 

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Silent Witness, Yuma’s anonymous tip line, to provide information to authorities 

to help fill in the missing pieces of evidence from what he had heard on the radio, 

on the news, and from others. (Tr. July 13, 2000 at 16–18, 59; Tr. Mar. 22, 2006 at 

62–63.) Even so, Hawkins later acknowledged, “I don’t know that anything [Kiles] 

told me that day was accurate.” (ROA 225 Ex. 38 at 2–3.) 

Kiles and Johnson also went to Imojean Kiles’s work place on the evening 

of February 10, 1989. (Tr. July 11, 2000 at 28–29.) Kiles told Imojean that he had 

killed someone, and he went on to say that he had killed Gunnel. (Tr. July 11, 2000 

at 30–31.) Imojean stated that Kiles said that the children were “taken care of” as 

well. (Tr. Feb. 21, 1989 at 57–58.) She denied, though, that Kiles told her he had 

killed the children. (Tr. July 11, 2000 at 31, 44.) Imojean described Kiles as 

nervous; he seemed like he was on some kind of drug. (Tr. Feb. 21, 1989 at 59.) 

In the early morning of February 11, 1989, lead investigator Detective Brian 

Rodgers of the Yuma Police Department arrived at Gunnel’s apartment and 

requested assistance from Detective Cynthia Anderson. (Tr. July 11, 2000 at 140.) 

The apartment was in disarray, with cartons of eggs on the kitchen floor, smeared 

blood stains, furniture overturned, and a body that was later identified as that of 

Gunnel. (Tr. July 11, 2000 at 143–44.) The living room had a pool of blood on the 

carpet under an overturned ottoman, which was later confirmed through DNA 

testing to be Gunnel’s blood. (Tr. July 17, 2000 at 8–9.) There was also blood on a 

soft-back chair. (Tr. July 17, 2000 at 9–10.) A ratchet mechanism for a car jack, 

which had Gunnel’s blood and hair on it, was found in the east bedroom under a 

pillow with blood. (Tr. July 11, 2000 at 170–71; Tr. July 17, 2000 at 26.) The 

bathroom had blood smears on the floor, smelled like cleanser, and contained a pile 

of bloody towels. (Tr. July 11, 2000 at 144.) 

Police found shoe impressions, Converse, Adidas-style, and “running Ws,” 

throughout and around the apartment. (Tr. July 11, 2000 at 158–60; Tr. July 12, 

2000 at 48–49; Tr. July 17, 2000 at 19–23.) The police also identified Converse and 

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Adidas-style shoe impressions close to Gunnel’s vehicle, which was recovered near 

Carver Park. (Tr. July 12, 2000 at 48–52.) Rodgers testified that he saw Converse 

shoe impressions in the sand where the children’s bodies were potentially put into 

the river, but that he failed to take any photographs. (Tr. July 17, 2000 at 94–95.) 

As Rodgers was preparing to leave the crime scene on the morning of 

February 10, 1989, he ran into Kale Johnson outside Gunnel’s apartment. (Tr. July 

17, 2000 at 30–31.) Rodgers arrested Johnson upon realizing that he was wearing 

Converse shoes with blood stains. (Tr. July 17, 2000 at 30–31.) DNA analysis later 

confirmed that the blood on Johnson’s shoes belonged to Gunnel. (Tr. July 12, 2000 

at 122.) Johnson was also wearing grey pants and a grey jacket at the time of his 

arrest; the pants had Gunnel’s blood on them, and the one spot of blood on the jacket 

that was tested came from an unidentified male. (Tr. July 12, 2000 at 129, 137–38.) 

After arresting Johnson, Rodgers took him to the police station, where he was 

questioned and threatened with murder charges if he did not testify against Kiles. 

(PFR2 Dkt. 20 Exs. 1-2 at 9.) Johnson ultimately pled to hindering prosecution and 

was sentenced to two and a half years in prison. (Tr. July 14, 2000 at 103–04.) 

In the early morning hours of February 11, 1989, Officer David Sherman of 

the Yuma Police Department found Kiles hiding under a bunk bed at a friend’s 

apartment. (Tr. July 17, 2000 at 201–03.) Kiles’s clothing contained Gunnel’s blood 

and blood from a source consistent with an offspring of Gunnel and Ward Wade, 

Jr. (Tr. July 12, 2000 at 122–24)—i.e., their only child, Shemaeah. Following 

Kiles’s arrest, while at the jail, Kiles told Detective Anderson that he wanted her to 

know that he had not killed the children. (Tr. July 10, 2000 at 194–95.) A few days 

later, on February 14, 1989, Kiles’s parole officer Ramon Mendoza interviewed 

Kiles. (2006 Trial Ex. 169 at 2.) Kiles conveyed to Mendoza, too, that he had killed 

Gunnel, but that he had not killed the children. (2006 Trial Ex. 175 at 2.) Kiles told 

Mendoza he was under the influence of cocaine, crack, heroin, and alcohol at the 

time of the crime. (2006 Trial Ex. 175 at 2.) 

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During the course of the investigation, detectives learned that on February 

10, 1989, Kiles and Johnson had sold some of Gunnel’s possessions to various 

individuals. (Tr. July 17, 2000 at 55.) Kiles and Johnson had ransacked the 

apartment in search of property they could sell for drugs. (Tr. July 17, 2000 at 190–

91.) On February 10, 1989, Kiles and Johnson sold a telephone from Gunnel’s 

apartment to Jesse Solomon, a friend of the Kiles family. (Tr. July 10, 2000 at 145–

46.) Once Johnson left, Kiles cried and told Solomon that he had killed somebody. 

(Tr. July 10, 2000 at 148–49.) 

On February 17, 1989, Anderson and Lieutenant John Lekan, of the Yuma 

Police Department, traveled to a city in Mexico to retrieve the body of LeCresha, 

who had been found in the Central Canal. (Tr. July 12, 2000 at 59–60, 64.) 

Shemaeah’s body was never found. (Tr. July 12, 2000 at 63.) 

Robert Mallon, M.D., a pathologist with the Yuma Regional Medical Center, 

performed autopsies on both Gunnel and LeCresha. (Tr. July 13, 2000 at 95, 101.) 

He concluded that Gunnel had died from “multiple blunt trauma to the head with 

multiple scalp lacerations, skull fractures, laceration to the brain.” (Tr. July 13, 2000 

at 97.) Gunnel also had a “fracture of the right arm, laceration to the skin of the 

right arm, and fracture of the bone.” (Tr. July 13, 2000 at 97.) Dr. Mallon further 

concluded that LeCresha had died from “blunt trauma to the skull with extensive 

skull fractures and brain laceration.” (Tr. July 13, 2000 at 101.) 

III. STATE COURT PRESUMPTION OF CORRECTNESS 

Kiles hereby challenges the presumption of correctness provided for by 28 

U.S.C. § 2254(e)(1) that could, in different circumstances, attach to certain factual 

findings made by the state courts in his case. As detailed throughout this Petition—

and as evidentiary development will further illustrate—such factual findings, to the 

extent any are found to exist, are not entitled to the presumption of correctness in 

§ 2254(e)(1). 

More specifically, Kiles asserts that findings of fact made by the state courts 

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at his retrial, on direct appeal, during state post-conviction proceedings, or at any 

other point since legal proceedings began in this case in 1989—should any such 

findings exist—are not entitled to this Court’s deference because those findings are 

not fairly supported by the record before the state courts. Kiles further asserts that 

the presumption of correctness is inapplicable and inappropriate in this case for 

several additional reasons, including but not limited to (1) the state courts’ factfinding procedures were inadequate to afford his constitutional claims full and fair 

consideration; (2) material facts were not adequately developed in state-court 

proceedings; (3) he did not receive full, fair, and adequate hearings in state court; 

and (4) the state-court proceedings otherwise denied him due process of law.

IV. PROCEDURAL STATUS OF CLAIMS AND EXHAUSTION 

Most of the federal constitutional claims alleged throughout this Petition 

have been exhausted in proceedings before Arizona courts. Some claims, however, 

were not fully presented in state court, were not ripe for review, or could only be 

adequately raised in this forum. Respondents bear the burden of demonstrating that 

Kiles has failed to exhaust a particular claim. See, e.g., Johnson v. Zerbst, 304 U.S. 

458, 464 (1938); Esslinger v. Davis, 44 F.3d 1515, 1528 (11th Cir. 1995); Herbst 

v. Scott, 42 F.3d 902, 905 (5th Cir. 1995); Brown v. Maass, 11 F.3d 914, 914 (9th 

Cir. 1993) (per curiam). 

To the extent that any claim is deemed procedurally defaulted, and because 

the doctrine of procedural default is based upon comity rather than upon 

jurisdiction, this Court retains the power to consider the merits of that claim. See, 

e.g., Reed v. Ross, 468 U.S. 1, 9 (1984). Further, this Court may review the merits 

of any procedurally defaulted claim because Kiles can demonstrate both cause for 

any failure to properly exhaust a particular claim and prejudice from the alleged 

constitutional violation. Alternatively, Kiles can demonstrate that a fundamental 

miscarriage of justice would result if this Court declined to hear any particular claim 

on the merits. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). And, to the 

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extent that Respondents argue that any state-court decisions adverse to Kiles were 

based upon state procedural grounds, those grounds were neither adequate to 

support the state court’s judgments nor independent of federal constitutional 

guarantees. See generally Stewart v. Smith, 536 U.S. 856 (2002) (per curiam); Ford 

v. Georgia, 498 U.S. 411, 423–24 (1991). 

As an additional matter, for any claims not raised or properly exhausted due 

to the ineffective assistance of prior counsel, Kiles can show, with the benefit of 

evidentiary development, that he has cause to overcome any procedural default of 

his meritorious constitutional claims. See, e.g., Martinez v. Ryan, 566 U.S. 1, 9 

(2012). Further, as Kiles will explain in his evidentiary-development motions, 

Rules 6 (discovery), 7 (expansion of the record), and 8 (evidentiary hearing) of the 

Rules Governing Section 2254 Cases in the United States District Courts require 

that federal courts provide a habeas petitioner with reasonable means to investigate 

and factually support the claims presented in a petition for a writ of habeas corpus. 

See McCleskey v. Zant, 499 U.S. 467, 498 (1991). 

Lastly, Kiles respectfully reserves the right to timely request a limited stay 

and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), in order to return 

to state court to present any unexhausted claims, should the need to do so become 

apparent. 

V. RIGHT TO AMEND 

Kiles expressly reserves his right to amend this Petition, both as a matter of 

course under Federal Rule of Civil Procedure 15(a)(1) and later, as necessary and 

appropriate. See Rule 12, Rules Governing Section 2254 Cases in the United States 

District Courts (applying Federal Rules of Civil Procedure to habeas proceedings). 

In McCleskey v. Zant, the Supreme Court reaffirmed the “principle that [a] 

petitioner must conduct a reasonable and diligent investigation aimed at including 

all relevant claims and grounds for relief in the first federal habeas petition.” 499 

U.S. 467, 498 (1991). Kiles believes that additional claims may be identified 

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through ongoing investigation, after discovery is conducted and completed, and/or 

after an evidentiary hearing is held. At the appropriate time during these 

proceedings, Kiles will therefore present any additional claims through 

amendments or supplements to this Petition. 

VI. AEDPA IS UNCONSTITUTIONAL 

As an initial matter, the principle that every prisoner must have all of his 

constitutional claims heard by a court is central to fundamental fairness and the 

integrity of the justice system. See Bounds v. Smith, 430 U.S. 817, 822–23 (1977). 

One essential method of ensuring that a prisoner’s constitutional claims are heard 

is through the availability of the writ of habeas corpus. However, the passage of the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) substantially 

changed the law that governs habeas petitions. See Felker v. Turpin, 518 U.S. 651, 

654 (1996). AEDPA’s restrictions suspend the writ of habeas corpus and violate the 

separation of powers, which results in prisoners remaining in prison without review 

of alleged constitutional defects of their convictions and sentences. 

A. AEDPA unconstitutionally suspends the writ of habeas corpus. 

Congress cannot define prisoners’ rights so narrowly that it, in effect, 

suspends the writ of habeas corpus. The writ of habeas corpus is guaranteed by the 

U.S. Constitution in the Suspension Clause, which provides that “[t]he Privilege of 

the Writ of Habeas Corpus shall not be suspended, unless when in Cases of 

Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. 

The Suspension Clause is a structural limitation on the power of Congress. Like 

bills of attainder and ex post facto laws, which are also prohibited in Article I, 

section 9, the suspension of habeas (except in cases of rebellion or invasion) belongs 

to a “category of congressional actions which the Constitution barred.” United 

States v. Lovett, 328 U.S. 303, 315 (1946). The writ “can be preserved in practice 

no other way than through the medium of the courts of justice; whose duty it must 

be to declare all acts contrary to the manifest tenor of the Constitution void.” Id. at 

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314 (quoting The Federalist No. 78 (Alexander Hamilton)). 

AEDPA prevents federal courts in certain circumstances from granting relief 

when it is undisputed that a conviction or sentence is unconstitutional. See 28 

U.S.C. § 2254. Under AEDPA, before granting the writ a federal court must 

determine whether, for example, the complete deprivation of a jury in a capital case 

is a “reasonable” or “unreasonable” constitutional violation. As explained long ago, 

habeas is “the most important human right” in the 

Constitution because it functions as a mechanism for the 

enforcement of the Bill of Rights against the federal 

government: “Censorship can be evaded; prosecutions 

against ideas may break down; a prison wall is there. Only 

habeas corpus can penetrate it. When imprisonment is 

possible without explanation or redress, every form of 

liberty is impaired. 

Dan Poulson, Note, Suspension for Beginners: Ex parte Bollman and the 

Unconstitutionality of the 1996 Antiterrorism and Effective Death Penalty Act, 35 

Hastings Const. L. Q. 373, 399 (2008) (quoting Zechariah Chafee, Jr., How Human 

Rights Got Into the Constitution 53 (1952)). This restriction on courts’ ability to 

grant relief constitutes an unconstitutional suspension of the writ. 

B. AEDPA violates the separation-of-powers doctrine. 

Congress cannot impinge on the courts’ duty to say what the law is, but 

Congress does so when it requires Article III courts to ignore any part of the 

Constitution and to instead give effect to a contrary law. See Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 178 (1803). Congress has the power to constrain courts’ 

authority. See Keene Corp. v. United States, 508 U.S. 200, 207 (1993); see also 

U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in 

one supreme Court, and in such inferior Courts as the Congress may from time to 

time ordain and establish.”). However, there are limits on that power. On such limit 

is that Congress must not manipulate the “test for determining the scope of [habeas 

corpus]” because the writ “is designed to restrain” Congress, and because the writ 

is “an indispensable mechanism for monitoring the separation of powers.” 

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Boumediene v. Bush, 553 U.S. 723, 765–66 (2008). 

The separation-of-powers doctrine found in Article III “serves both to protect 

the role of the independent judiciary within the constitutional scheme of tripartite 

government . . . and to safeguard litigants’ right to have claims decided before 

judges who are free from potential domination by other branches of government.” 

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986) (citations 

and internal quotation marks omitted). When confronted with an unconstitutional 

provision, the Supreme Court in Marbury considered whether courts are bound by 

“an act of the legislature” that is “repugnant to the constitution.” The Court 

concluded, “It is emphatically the province and duty of the judicial department to 

say what the law is.” 5 U.S. at 177. 

“[I]f Congress does provide for habeas in the federal courts, Congress cannot 

. . . instruct the federal courts, whether acting in a federal or in a state case, how to 

think, how to ascertain the law, how to judge.” Irons v. Carey, 505 F.3d 846, 855 

(9th Cir. 2007) (Noonan, J., concurring), overruled on other grounds by Hayward 

v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). AEDPA infringes upon the 

power of the courts to say what the law is and to give effect to that law and thereby 

violates the separation-of-powers doctrine. 

C. Conclusion. 

AEDPA unconstitutionally suspends the writ of habeas corpus and violates 

the separation-of-powers doctrine because it dictates that courts must not “grant 

relief to citizens who are being held in prison in violation of their constitutional 

rights unless the constitutional error that led to their unlawful conviction or sentence 

is one that could not have been made by a reasonable jurist.” Irons, 505 F.3d at 859 

(Reinhardt, J., concurring specially). Also, AEDPA does not allow an appellate 

judge to correct an unlawful detention if a lower court’s “error is understandable,” 

which is inconsistent with a judge’s duty “to enforce the laws and protect the rights 

of our citizens against arbitrary state action.” Id. “Whether it was reasonable for a 

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state court to misapprehend the dictates of the Constitution in a particular case 

hardly seems relevant to a citizen’s right not to be imprisoned in violation of the 

fundamental liberties he is granted by the document that governs our societal 

structure.” Id. As AEDPA is unconstitutional, this Court should not be constrained 

by its dictates. 

Claim One 

Representation at trial was so marred by conflicts, 

misrepresentations, and procedural violations that Kiles was denied 

effective counsel and fair and reliable capital proceedings. 

 Kiles’s trial began with a procedural due-process violation, proceeded with 

counsel whose interests diverged from their client’s during the course of 

representation, and ended in a capital sentence that can only be described as 

arbitrary and unfair, in violation of the Sixth, Eighth, and Fourteenth Amendments 

to the U.S. Constitution. Kiles presented this claim below. (ROA 1189 at 10–18, 

23–30; PFR2 Dkt. 1 at 12–18, 25–30.) Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

A. Kiles received ineffective assistance of counsel from the start. 

Kiles’s first trial, held in 1989, was reversed on state post-conviction review 

based on ineffective-assistance-of-counsel grounds in 1996. (ROA 314 at 4.) The 

case was referred back to Yuma County Superior Court and assigned to Judge Kirby 

Kongable. (ROA 337 at 1.) Kiles’s state post-conviction counsel, Mary Boyte, 

moved to withdraw, as she was not qualified to be lead counsel on a trial-level 

capital case. (Tr. Mar. 13, 1998 at 4.) Initially, the Yuma County Office of the Legal 

Defender was appointed to the case. (Tr. Mar. 13, 1998 at 6.) Given the size of the 

case, the Office of the Legal Defender determined it was insufficiently staffed to 

retain the case, and the case was assigned to two private defense attorneys, Robert 

Roberson and Jerrold Shelley. (ROA 352 at 1.) After concerns were raised, Mary 

Boyte was appointed as special counsel to investigate whether Roberson and 

Shelley had a conflict of interest. (Tr. Mar. 13, 1998 at 36–37). As a result of 

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multiple conflicts, Roberson and Shelley were forced to withdraw. (ROA 376 at 3–

10; ROA 377 at 1.) Kiles’s case was referred back to the Office of the Legal 

Defender for assignment of counsel. (ROA 377 at 1.) 

1. Greg Clark’s appointment did not satisfy Arizona’s 

standards for appointment as capital defense counsel. 

 At the time of Kiles’s trial, Yuma County had adopted a bidding system to 

appoint counsel for indigent defendants. While the court appointed attorneys to 

represent indigent defendants, the Office of the Legal Defender held the contracts 

providing payment to private attorneys. On September 10, 1998, after Roberson and 

Shelley had withdrawn from Kiles’s case, the Yuma County Legal Defender and 

Conflict Administrator Jose de la Vara solicited a bid from Phoenix attorney Greg 

Clark to represent Kiles. Clark submitted a bid that same day, attesting that he had 

tried 25 first-degree murder cases, including eight capital cases, and that he had 

only one client on death row. However, Clark had at least three clients on death row 

at the time of his bid.3

 Clark’s material misrepresentation was the first in a long 

string of misrepresentations by Clark throughout the eight years he was appointed 

to represent Kiles. 

 Clark had also been publicly censured in 1997 for ineffective assistance in a 

juvenile case. Despite being on notice that Clark had been disciplined by the 

Arizona State Bar Association (hereinafter “Bar”), de la Vara nevertheless sought 

his appointment.4

 De la Vara also requested that Mark Reeves, an attorney from the 

Office of the Legal Defender, be appointed as co-counsel. 

 

3

 At the time of Greg Clark’s appointment to Kiles’s case, Clark’s former clients 

Michael Gallegos, Timothy Ring, and Kenneth Laird were on Arizona’s death row. 

See Gallegos v. Schriro, 583 F. Supp. 2d 1041 (D. Ariz. 2008); State v. Ring, 25 

P.3d 1139 (Ariz. 2000), overruled by Ring v. Arizona, 536 U.S. 584 (2002); State 

v. Laird, 920 P.2d 769 (Ariz. 1996). 

4

 In a letter to Mary Boyte, Jose de la Vara stated that he did not take the time to 

investigate whether Greg Clark was qualified for appointment because de la Vara 

had known Clark for a long time and relied on that relationship of trust. 

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 Mary Boyte, in her role as special counsel, filed a notice with the court on 

October 2, 1998 stating that she was “concerned that the attorneys who are being 

designated for appointment by the Office of the Legal Defender and the Yuma 

County Board of Supervisors do not meet the requirements for representation of 

capital defendants as set forth in Rule 6.8 [of the Arizona Rules of Criminal 

Procedure].” (ROA 379 at 1–2.) Arizona Rule of Criminal Procedure (hereinafter 

“Rule”) 6.8, which contains Arizona’s Standards for Appointment of Counsel in 

Capital Cases, requires that to be eligible for appointment in a capital case, an 

attorney “shall have been a member in good standing of the State Bar of Arizona 

for at least five years immediately preceding the appointment.” Rule 6.8(a)(1). The 

court held a hearing to determine whether Clark met the qualifications under Rule 

6.8. Boyte informed the court that Clark had been censured in 1997 for providing 

ineffective assistance in a juvenile transfer case and had been suspended for 

administrative proceedings a few months prior. (Tr. Oct. 7, 1998 at 5–6.) 

 In response, Clark misrepresented to the court the nature and severity of those 

disciplinary actions. Clark said that the public censure for his ineffective assistance 

was not a failing on his part but “a judgment call and, you know, given the facts as 

they were then and today, I probably would do the same thing.” (Tr. Oct. 7, 1998 

at 10.) He then misrepresented his suspension, asserting that the mistake was not 

his, but that of the Bar’s. “The Bar believed that I did not pay my dues this year. So 

as a matter of course, they issued an order of suspension which they later retracted 

almost immediately when it was learned that, in fact, I had paid those dues.” (Tr. 

Oct. 7, 1998 at 10.) 

 Neither of these accounts was accurate. Regarding the public censure for 

ineffective assistance of counsel, Clark failed, despite ample evidence, support, and 

opportunity, to effectively advocate for his juvenile client. Clark’s inadequate 

representation resulted in the juvenile being transferred to adult court. In order to 

receive no more severe a punishment than public censure, Clark conditionally 

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admitted to the Disciplinary Commission of the Supreme Court that his conduct 

was in violation of ethical rules governing competence, diligence, and 

communication. Clark’s discipline was not the result of a mere bad “judgment call,” 

but the result of his repeated failures during the representation to provide 

constitutionally effective counsel. The Arizona Court of Appeals found that Clark’s 

actions in the case were so unreasonable as to be constitutionally deficient. Indeed, 

the court declared that Clark’s “failure to even attempt” to advocate whatsoever for 

his juvenile client, even when given multiple opportunities to do so, “leads us to 

conclude that ‘but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” Matter of Appeal in Maricopa Cty., Juvenile Action 

No. JV-511576, 925 P.2d 745, 748 (Ariz. Ct. App. 1996) (quoting Strickland v. 

Washington, 466 U.S. 668, 694 (1984)). As to the suspension as a result of the nonpayment of dues, the mistake was not on the part of the Bar. It appears that Clark 

had in fact failed to pay his dues and was only reinstated upon payment of those 

dues, two weeks later. (Tr. Oct. 7, 1998 at 10; PFR2 Dkt. 1 at 16.) 

 Four months before the hearing regarding Clark’s suitability for appointment, 

the prosecutor at the time had emphasized to the court, “Your Honor, this is a capital 

case. Under Rule 6.8 there are standards for appointment of counsel in capital cases 

that we have to observe.” (Tr. Mar. 13, 1998 at 5). At the hearing regarding Clark’s 

qualifications, however, prosecutor David Powell, who had recently taken over the 

case on behalf of the Arizona Attorney General’s Office, told the judge that Clark 

“enjoys a wonderful reputation in Maricopa [County]” and that his main concern 

was whatever was “most expeditious.” (Tr. Oct. 7, 1998 at 11–12.) 

 The court relied on the State’s representations to approve Clark’s 

appointment, in violation of Rule 6.8 and without any further inquiry. The court 

stated: 

Well, even Mr. Powell thinks that Mr. Clark enjoys an 

excellent reputation in Maricopa County. That’s one thing 

. . . I am not at all concerned about the Bar thinking maybe 

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he hadn’t paid his dues when he had and that matter being 

resolved in a quick matter. The incident that occurred in 

1995 perhaps causes me some concern, but I think when 

you weigh that against his experience and reputation and 

the fact that may very well have been a judgment call on 

his part, that that’s not enough for me to say that I don’t 

feel Mr. Clark is qualified. 

(Tr. Oct. 7, 1998 at 21.) Accordingly, the court expressly relied on Clark’s 

misrepresentations in discounting the importance of his disciplinary issues. 

 After the hearing, Clark submitted a Notice of Compliance with Rule 6.8, 

stating that he had met the practice element of the Rule. (ROA 381.) He, notably, 

did not assert that he had been in good standing with the Bar for the preceding five 

years, nor did he attach a Certificate of Good Standing, which at the time under 

Rule 74 of the Rules of the Arizona Supreme Court would have listed his 

disciplinary record. However, to prove he met the training requirement under Rule 

6.8, Clark provided his attendance form and a copy of the check in payment for the 

training. The check was from his IOLTA account, itself a violation of his 

obligations as an attorney.5

 (ROA 381 at 6.) 

 The court subsequently appointed Clark as lead counsel for Kiles. The terms 

of the contract with the Office of the Legal Defender provided for a flat fee of 

$25,000 for Clark to accept the case, with another $25,000 in the event the case 

went to trial. (Tr. Nov. 29, 1999 at 6.) The contract required that Clark meet the 

requirements for attorneys handling death-penalty cases in Arizona as set forth in 

Rule 6.8. (PFR2 Dkt. 22 Ex. 10 at 1.) 

2. Clark failed to establish an attorney-client relationship with 

Kiles. 

 Clark’s relationship with his client was tenuous from the start. After the court 

 

5

 IOLTA accounts contain client funds and should not be co-mingled with the 

attorney’s own money or used to attend seminars. See Ariz. R. Professional 

Conduct, ER 1.15; (DA2 Dkt. 86 at 71 n.7). The same month Clark was appointed 

to Kiles’s case, he was placed in a counseling program to address his ethical 

misconduct for trust account violations. (ROA 1189 at 16; PFR2 Dkt. 29 Ex. 37.) 

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hearing on Clark’s qualifications, Kiles expressed some concern to his state postconviction counsel. She listed questions Kiles could ask Clark about his experience 

in order to assuage any concerns. However, Kiles never had the opportunity to ask 

those questions, and Clark’s representation in the initial months of his appointment 

only heightened Kiles’s concerns. On January 6, 1999, Kiles sent a letter to Judge 

Kirby Kongable requesting new counsel, stating that in the first three months of 

appointment Clark had spoken with him for only two hours and that Clark had 

informed Kiles that he was not going to “baby-sit” him. (ROA 392 at 5.) Kiles wrote 

that communication with Clark was down to “zero.” (ROA 392 at 3.) In response, 

Clark filed an ex parte response with Judge Kongable and defended himself by 

portraying Kiles as difficult.6

 Clark agreed he was not communicating with Kiles, 

but he blamed Kiles for this failure. (ROA 393 at 1.) Clark further defended himself 

by stating that until he had completely read the case file and discovery was 

complete, he would be “unable to have any meaningful communication” with 

Kiles.7

 (ROA 393 at 2.) Clark concluded his response by writing, “It is only human 

nature that differences of opinion arise and other conflicts come about.” (ROA 393 

at 3.) 

 At a status hearing only three months after Clark’s appointment, Kiles again 

informed the judge of his concerns regarding Clark’s effectiveness, especially his 

lack of communication. (Tr. Jan. 22, 1999 at 5.) Kiles told the court that from 

October 17, 1998 to January 5, 1999, he had had no communication whatsoever 

 

6

 Under Arizona law at that time, Judge Kongable would have made the capitalsentencing decision in the event Kiles was convicted of first-degree murder. 

7

 In contrast, Roberson and Shelley, who had been appointed prior to Clark, 

informed the court that adequately preparing to represent Kiles would take 

approximately one hundred hours of jail visits. (Tr. Mar. 24, 1998 at 21–22; DA2 

Dkt. 89 at 78.) This representation was more in line with the prevailing standards 

of care in Arizona at the time of these proceedings. Ariz. Attorneys for Crim. Justice 

& Ariz. Capital Rep. Project, Arizona Capital Case Defense Manual at 20–21 (1995 

ed.). 

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from Clark, prompting Kiles’s January 1999 letter to the judge.8 (Tr. Jan. 22, 1999 

at 5–6.) The court demurred—its first in a long series of refusals to take action to 

ensure appropriate representation—and merely admonished all parties do the best 

they could to work together. (Tr. Jan. 22, 1999 at 10–11.) One month later, Mark 

Reeves withdrew as co-counsel after he discovered a conflict that prohibited his 

office from representing Kiles, and Mary Boyte was appointed as Kiles’s second 

counsel. (Tr. Dec. 9, 1998 at 5; ROA 399 at 1.) 

 In the first year of Clark’s appointment, the irreparable breakdown between 

attorney and client was clear. In July 1999, Kiles filed a pro per motion requesting 

new counsel, asserting that, though the court had accused him at the January 1999 

hearing of trying to “interject error into the proceedings, this was not my intention 

then or now. I just want adequate attorneys.” (ROA 407 at 4.) Kiles wrote that Clark 

had promised to send Kiles legal material pertaining to his case but had not done 

so; Kiles also stated that Clark had told Kiles to call, but that Clark’s staff would 

often hang up when Kiles did so. (ROA 407 at 6–7.) Kiles supplemented this motion 

two days later “to correct a lie told to the court” by Clark and to inform the court 

about Kiles’s first legal visit from Clark in five months. (ROA 408 at 1.) The lie 

was in a motion to continue that Clark had submitted that stated, “Defense counsel 

has spoken with the Defendant in this matter, who has [] indicated that he has no 

objection to continuing this matter.” (ROA 405 at 1–2.) Kiles reported that he could 

not have agreed to a continuation, as he had never been asked by Clark. (ROA 408 

at 1.) As to the legal visit, it was not a productive visit; Clark did not bring any 

papers, nor even anything to write with or on, and therefore nothing was 

accomplished. (ROA 408 at 2–3.) 

 At an August 1999 hearing regarding second counsel Boyte’s motion to 

 

8

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communication, Kiles told the court, “I mean, I can’t get out of jail and go to his 

office. So how could it be my choice not to communicate with him?” (Tr. Jan. 22, 

1999 at 5.) 

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withdraw from the case,9 Kiles flagged for the court Clark’s continued 

misrepresentations to him. For example, when Clark was appointed, Clark had both 

promised Kiles and informed the court that he would be filing a motion to challenge 

Kiles’s grand-jury proceedings. (ROA 388 at 1–2.) That motion was never filed. 

(Tr. Aug. 6, 1999 at 14–15.) As another example, Kiles notified the court that Clark 

had misled him, pushing him toward an early trial date based on Clark’s assertion 

that doing so would encourage a plea deal. (Tr. Aug. 6, 1999 at 11.) Kiles agreed to 

Clark’s proposed early trial date, only to later discover that the State had rejected 

any such deal a month prior to Kiles’s conversation with Clark. (Tr. Aug. 6, 1999 

at 11.) Kiles expressed concern that Clark was failing to do any investigation in his 

case and that he was also refusing to read the file from Kiles’s successful state postconviction petition. Clark readily agreed about prior counsel’s file: “I certainly did 

indicate—and [Kiles] is absolutely right—that the boxes of information that are out 

there now were worthless.” (Tr. Aug. 6, 1999 at 30.) 

 The previous case file, however, was not worthless. Kiles’s second trial was 

based on the same State’s facts that had been challenged during state postconviction proceedings and involved many of the same witnesses who had been 

interviewed during those proceedings. Moreover, the case file highlighted the 

mistakes of counsel during the first trial, which would have been instructive for 

Clark as he prepared for Kiles’s retrial. Still, Clark chose not to avail himself of this 

crucial information. 

 Kiles told the court that he was not the only one with whom Clark would not 

communicate. Boyte was having the same problem with Clark. While Kiles often 

had trouble getting Clark on the phone, when Kiles succeeded, he then had to call 

Boyte to relay what Clark had said. Otherwise, Boyte was left in the dark. (Tr. Aug. 

6, 1999 at 12.) Kiles told the court that this method of communication between 

 

9

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co-counsel was “ridiculous.” (Tr. Aug. 6, 1999 at 17.) 

 Additionally, Kiles was concerned about informal discussions between 

counsel and with the court that were off-the-record and outside of his presence. (Tr. 

Aug. 6, 1999 at 13.) He told the court that, as his life was on the line, he believed 

he had a right to be present for informal meetings about him or his case, or at least 

have the opportunity to read a transcript later. (Tr. Aug. 6, 1999 at 13–14.) Kiles 

said simply, “I am not trained as an attorney. I respect Mr. Clark as an attorney, but 

still I am not an idiot. I can read; I can write. So I would like to be there.” (Tr. Aug. 

6, 1999 at 14.) But when Kiles informed Clark that he would like to be present, 

Clark refused the request and told Kiles he would continue to have off-the-record 

discussions.10 (Tr. Aug. 6, 1999 at 14.) Clark’s unauthorized waiver of his client’s 

constitutional rights left Kiles without an advocate he could trust to be honest with 

the court. 

 That fundamental lack of trust also affected Kiles’s ability to lay out his 

concerns before the court at the hearing. Kiles stated that he felt like he was at a 

disadvantage because he was unsure whether what he wanted to say could harm 

him or his case. (Tr. Aug. 6, 1999 at 15.) Kiles told the court, “If I had an attorney 

stand up here I can trust, I would ask him.” (Tr. Aug. 6, 1999 at 15.) But because 

he was unsure if he should relay all of his concerns about Clark for fear of 

endangering his case, Kiles felt compelled to stay silent. (Tr. Aug. 6, 1999 at 15.) 

The court made no further inquiries as to those concerns. 

 When given the opportunity to respond, Clark told the judge that, “with 

regard to what has been going on in this case; I have been to the scene, I have been 

to the place where the bodies were found. I have made a complete review of all of 

the documentation in this case.” (Tr. Aug. 6, 1999 at 31.) Clark also claimed, 

“Judge, I have done everything I can on [Kiles’s] behalf in this case.” (Tr. Aug. 6, 

 

10 Kiles was right to be concerned, as trial counsel were ineffective for failing to 

make a record at every stage of the proceedings. See Claim 16, infra. 

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1999 at 33.) Beyond asserting that he had done a complete review of the 

documentation of the case after stating that the case file was “worthless,” Clark was 

not in control of the basic facts of the case. Clark had neither conducted witness 

interviews nor arranged to speak with any experts, as confirmed by the time logs 

Clark later submitted to the court. (Tr. Aug. 6, 1999 at 41–42; ROA 414 at 32–49.) 

And at the August 1999 hearing, Clark asserted, “It is to no defendant’s advantage 

in a capital case to rush quickly to trial,” even though Kiles had filed his request for 

new counsel precisely because he believed (accurately) that Clark was rushing to 

trial. (Tr. Aug. 6, 1999 at 11, 34; ROA 409 at 2.) 

 By this time, Clark had been lead counsel for ten months. When Clark was 

first appointed to Kiles’s case, he had told Kiles that if Kiles asked him to withdraw 

for good reason, Clark would do so. (Tr. Aug. 6, 1999 at 12.) Kiles believed his and 

Clark’s inability to maintain communication, trust, or any kind of working 

relationship was a good reason. (Tr. Aug. 6, 1999 at 12.) Kiles was also frustrated 

with Clark’s dishonesty, both to him and to the court, and with Clark’s waiver of 

Kiles’s right to be present at pretrial proceedings. (Tr. Aug. 6, 1999 at 12–14.) Kiles 

felt Clark was preventing Kiles’s ability to participate in his own defense. (Tr. Aug. 

6, 1999 at 14.) Therefore, Kiles had asked Clark to withdraw, but Clark had 

refused.11 (Tr. Aug. 6, 1999 at 12.) Frustrated with Clark’s misrepresentations, 

Kiles expressed desperation: 

I am at the point now where I don’t believe anything he 

tells me. Nothing whatsoever. I have asked him to 

withdraw from being my attorney. He told me when I first 

-- when he was first appointed to my case, that if I asked 

him to withdraw for a good reason, he would do just that 

and I think it’s a good reason. I feel like I have been lied to. 

 

11 Clark may have refused to withdraw for financial reasons. Kiles’s prior attorneys, 

who withdrew before Clark was appointed due to a conflict of interest, were 

required to refund Yuma County the majority of their flat-fee payment after 

subtracting for the hours they had worked on Kiles’s case at a rate set by the court. 

(Tr. Nov. 29, 1999 at 3–8.) 

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I know I have been lied to by him. He lied to the court on 

me and said something I didn’t say. 

(Tr. Aug. 6, 1999 at 12.) Kiles had a good relationship with Boyte—she had guided 

him to relief previously—and made multiple requests to the court to deny Boyte’s 

motion to withdraw and assign adequate counsel to replace Clark. (Tr. Aug. 6, 1999 

at 10, 15–16, 27.) Kiles told the court, “If you keep Mr. Clark on my case, I don’t 

know how he is going to be able to defend me because there is some things I need 

to tell my attorney, but I will not tell him.” (Tr. Aug. 6, 1999 at 17.) Yet the court 

granted Boyte’s motion to withdraw, and Clark remained lead counsel. (Tr. Aug. 6, 

1999 at 48.) 

3. Clark’s lack of communication and deficient performance 

compelled co-counsel to withdraw. 

 The client-attorney relationship was not the only relationship that Clark had 

irredeemably destroyed. Mark Reeves, initially appointed as Clark’s co-counsel, 

was required to withdraw due to a conflict, and Mary Boyte replaced Reeves as 

Kiles’s second trial attorney. (ROA 399 at 1.) Boyte, Kiles’s state post-conviction 

counsel, had a strong relationship with Kiles and a deep familiarity with the case. 

Rather than relying on her as an asset, however, Clark largely ignored Boyte. (ROA 

409 at 1.) 

 In the four months after her appointment in March 1999, Boyte had no 

communication with Clark save a single fax. (ROA 409 at 1.) When Clark pushed 

for a speedy trial, Boyte expressed concern that Clark wanted a trial date in 

November 1999, as “there has been no investigation or pretrial work of any kind 

conducted” in the case. (ROA 409 at 2.) Although funding for an investigator and 

a mental-health expert had been approved by the court, no investigator had been 

hired, no witnesses had been interviewed, and the lone proposed expert had not 

been contacted. (ROA 409 at 2.) Boyte also believed that Clark’s lump-sum, 

contingency fee contract with the Office of the Legal Defender was pushing Clark 

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to go to trial without sufficient investigation or preparation and that the contract 

violated ER 1.5(D)(2) of the Arizona Rules of Professional Conduct, which 

prohibited attorneys from entering into an arrangement to represent a defendant in 

a criminal case for a contingent fee. (ROA 409 at 3.) 

 Based upon what she perceived as her ethical obligations and Clark’s failure 

to provide effective assistance of counsel, Boyte moved to withdraw on July 16, 

1999. (ROA 409 at 3–4.) At the August 1999 hearing on Boyte’s motion to 

withdraw, Kiles testified that Clark had justified his refusal to speak with Boyte by 

telling Kiles that Boyte would not understand strategy and might object to some of 

the things Clark was doing. (Tr. Aug. 6, 1999 at 16.) In other words, according to 

Kiles, Clark acknowledged that he was interfering with Kiles’s ability to have two 

trial attorneys, to which Kiles had a right under Arizona law. See Ariz. R. Crim. P. 

6.2(b). 

 At the hearing on her motion, Boyte was represented by attorney Robert 

Wood, a member of the State Bar of Arizona Ethics Committee. Wood stated he 

had urged Boyte to withdraw. (Tr. Aug. 6, 1999 at 22.) Wood informed the court 

that there was a “complete lack of cooperation” of the “kind between lead counsel 

and second counsel.” (Tr. Aug. 6, 1999 at 23.) Wood also stated that Boyte believed 

“the flat fee arrangement that Mr. Clark has with the county is in effect a contingent 

fee.” (Tr. Aug. 6, 1999 at 24–25.) While Wood explained that he was not there to 

argue the ethical nature of Clark’s contract, he supported Boyte’s decision to not 

enter into a similar contract as co-counsel. He did so given Boyte’s concerns about 

the perverse incentives such a contract creates in general, as well as the conflict it 

created for Boyte with lead counsel, as Boyte believed the defense was unprepared 

for trial and disagreed with Clark over how they should proceed.

12 (Tr. Aug. 6, 1999 

 

12 As the person most knowledgeable about Kiles’s case, Boyte did not believe the 

case should proceed to trial, much less without investigation or expert witnesses. In 

correspondence with her attorney, she stated that she and the other state postconviction attorneys who had previously assisted with the case believed that the 

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at 25–26.) 

 After listening to testimony, Judge Kongable acknowledged on the record 

that he believed Kiles’s concerns were “genuine.” After the previous request for 

new counsel, Judge Kongable had been “hoping that communication would 

increase.” (Tr. Aug. 6, 1999 at 46–47.) Judge Kongable said that lack of 

communication concerned him, but concluded that it appeared—despite Kiles’s and 

Boyte’s reports to the contrary, and indeed Clark’s own admission that the case files 

were “worthless”—Clark was “making progress in terms of going through 

voluminous material.” (Tr. Aug. 6, 1999 at 30, 47.) And though Clark had been on 

Kiles’s case for ten months, Judge Kongable credited Clark as taking preparatory 

steps toward basic investigation, such as “setting up interviews” and “making 

arrangements for an investigation.” (Tr. Aug. 6, 1999 at 47.) Judge Kongable 

therefore did not believe “certainly to this point” Kiles was receiving ineffective 

assistance of counsel. (Tr. Aug. 6, 1999 at 47.) 

 Thus, despite the irreconcilable conflict with the client, despite Clark’s 

misrepresentations, and over Kiles’s objections, the court granted Boyte’s request 

to withdraw. (ROA 412 at 1.) Clark remained lead counsel.

 Four days later, Treasure VanDreumel, an attorney also based in Phoenix, 

accepted the position as second chair. Her contract was also structured on a flat fee, 

contingency basis: she would receive $10,000 for accepting the appointment to the 

case and another $10,000 if the case went to trial. 

4. Clark blamed others for his irreparably fractured 

relationship with Kiles. 

 The conflicts between lead counsel and Kiles, and between counsel 

themselves, did not improve. In September 1999, Kiles submitted his third pro per 

motion to the court, informing it that the communication between him and Clark 

had deteriorated even further since the evidentiary hearing the previous month. 

 

best possible outcome would be for Kiles to not proceed to trial. 

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(ROA 413 at 1–2.) Kiles wrote that he understood, “I am not allowed an attorney 

of my choice since I am indigent but I do believe I have the right to attorneys who 

are effective and competent.” (ROA 413 at 5.) Kiles stated that communication with 

his attorneys had become more difficult, as now neither of his attorneys practiced 

in Yuma but in Phoenix; upon VanDreumel’s appointment, he had been given no 

contact information to communicate with her. (ROA 413 at 2.) Though Clark had 

promised to schedule a legal visit at which he, VanDreumel, and the investigator 

would be present, Kiles reported Clark had failed to do so. (ROA 413 at 2.) Kiles 

informed the court that he had learned that Clark had another client in Yuma who 

he had visited without also seeing Kiles. (ROA 413 at 4.) Kiles explained to the 

court that he simply wished he could have legal visits on a regular basis, but Clark 

had refused. (ROA 413 at 4.) 

Also in September 1999, Judge Kongable received a call from another Yuma 

County judge, Judge Nelson, expressing concern that Kiles was “potentially not 

receiving adequate representation.” (ROA 414 at 16.) This phone call arose from a 

conversation that Boyte had had with Judge Nelson, which he relayed in part to 

Judge Kongable. (Tr. Oct. 8, 1999 at 3, 10–11.) Judge Kongable set a hearing to 

address these issues for October 8, 1999. Clark filed a response with the court 

stating, “It is the position of undersigned counsel that this issue has been 

manufactured by Mary Boyte, Esq. and the defendant in a blatant effort to create 

what they believe is error.” (ROA 414 at 4.)13 

 Because Boyte’s conversation with Judge Nelson had precipitated the phone 

call to Judge Kongable, Boyte was put on the stand and questioned by the court at 

the October 1999 hearing. The court also allowed the prosecutor David Powell to 

cross-examine Boyte regarding whether she was conspiring to undermine Clark’s 

 

13 Despite Clark’s conspiracy theory, Kiles’s counsel would later rely on Boyte to 

obtain signatures and file motions for them so they would not have to travel to 

Yuma to do so. 

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representation of Kiles. Powell questioned Boyte about her continuing relationship 

with Kiles. (Tr. Oct. 8, 1999 at 18–19.) Boyte stated she was still visiting Kiles, as 

she was representing him on civil matters. (Tr. Oct. 8, 1999 at 20.) When the court 

cautioned Powell that his questions were straying into privileged attorney-client 

communications, Powell responded, “Judge, it is the theory of the State, as well as 

I believe Mr. Clark, that this witness . . . is trying to do anything to have Mr. Clark 

taken off. I am trying to point out the extremes she has gone to to subvert Mr. 

Clark’s representation.” (Tr. Oct. 8, 1999 at 22.) 

 Boyte stated she could not understand what could be gained from her creating 

conflict between Kiles and Clark. (Tr. Oct. 8, 1999 at 35–36.) Rather, when she was 

co-counsel, she “asked that the defendant make every attempt to get along with Mr. 

Clark. I encouraged that. And the defendant did that. He really did make every 

attempt.” (Tr. Oct. 8, 1999 at 36.) She stated that Clark had simply made the 

decision “not to communicate with this defendant.” (Tr. Oct. 8, 1999 at 36.) 

 Boyte explained that she had spoken to Judge Nelson “just for advice, more 

than anything. I did not expect him to take any action.” (Tr. Oct. 8, 1999 at 10.) She 

believed that the conversation was only “going to be between him and myself.” (Tr. 

Oct. 8, 1999 at 7.) Boyte went to him because, she said, “I have a burden in my 

heart, because I don’t feel that [Kiles] is being defended the way he needs to be 

defended.” (Tr. Oct. 8, 1999 at 10.) She had simply been trying to ascertain 

“whether or not I had some kind of obligation” to take action about her concerns. 

(Tr. Oct. 8, 1999 at 27.) 

 Clark was also given the opportunity to question Boyte, and he made clear 

that his concerns were the allegations against him, rather than the quality of his 

representation to his client. He told the court, “This is just the type of thing that, 

you know, can rear its ugly head later on down the road sometime in a PCR. I don’t 

want to get blind-sided.” (Tr. Oct. 8, 1999 at 33.) 

 Clark was questioned as well, and when asked by the judge, admitted, “I 

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don’t tend to waste a whole lot of time in discussing [trial] issues with someone in 

Mr. Kiles’s position.” (Tr. Oct. 8, 1999 at 41.) Clark said he was “not the type of 

lawyer that holds someone’s hand.” (Tr. Oct. 8, 1999 at 45.) Additionally, he made 

the claim, “I have probably tried more murder cases at federal level than anyone in 

this part of the United States, just because of our proximity in the federal system 

and jurisdiction we have in this state.” (Tr. Oct. 8, 1999 at 45.) He disclosed trial 

strategy in an attempt to portray himself in a positive light, telling the court, 

I have, you know, have done the research that I have needed 

to do with regard to the current state of the law regarding 

the imposition of the death penalty. I have done the 

research that deals with the applicable issues on the old 

code. Because, at some point in time, his earlier counsel 

chose not to pursue a defense, which was absolutely 

applicable 12 years ago, when this conviction occurred, 

which can have a great impact with regard to how this case 

is ultimately portrayed in front of the jury, allowing him to 

pursue less included offenses, that will be well brought, and 

not summarily denied by a court, when offered by way of 

an instruction. 

(Tr. Oct. 8, 1999 at 41.) 

 Powell was also given a chance to question Clark.14 Under friendly 

questioning, Clark again misrepresented that he had been qualified for the capital 

appointment, stating “it was [Boyte’s] assumption, somehow, I was suspended from 

the Bar.”15 (Tr. Oct. 8, 1999 at 53.) Clark again called the case file from Kiles’s first 

state post-conviction “worthless,” even though the file contained the extensive 

investigation information, expert reports, and witness interviews that had won Kiles 

a new trial. (Tr. Oct. 8, 1999 at 65.) And Clark assured the court, “If in fact I 

perceive some problem with adequately representing Mr. Kiles, I will be the first to 

step up to the plate.” (Tr. Oct. 8, 1999 at 59.) 

 

14 It is unclear why the State had standing or grounds to do so. 

15 As discussed further below, Clark had been suspended from the Bar a few months 

prior to his appointment on Kiles’s case. 

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 At the hearing, Kiles clarified that the conflict between him and Clark was 

not due to Boyte, but Clark’s misrepresentations and his continued failure to follow 

through with his promises. Kiles testified that Clark had previously misrepresented 

to the court Clark’s involvement in a previous attempt at victim contact, as well as 

that Clark had lied to Kiles about the possibility of a plea bargain. (Tr. Oct. 8, 1999 

at 84–85, 90.)16 Kiles told the court, “He tells me so many different things, and 

contradicts them, and I don’t understand why he is still on my case. I don’t know if 

it’s for financial reasons. I don’t believe he is trying to help me.” (Tr. Oct. 8, 1999 

at 81.) 

 Despite Kiles’s repeated insistence that Clark was lying to him about material 

facts and legal matters, Judge Kongable refused to take action. The court 

announced, “I think, when all of the shouting is said and done, Mr. Clark is going 

to probably do a bang-up job for Mr. Kiles. So request to remove him is denied.” 

(Tr. Oct. 8, 1999 at 97.) 

5. Kiles filed a Complaint in Special Action with the Arizona 

Supreme Court requesting new counsel. 

 Given the outcome of the above hearing, Kiles wrote to Clark, telling him 

that, as they were still forced to work together, Kiles would try to work with him 

and the recently appointed Treasure VanDreumel to assist in his defense. This goodfaith attempt by Kiles to give Clark a chance to be honest and communicative failed, 

prompting Kiles to file a pro per motion in January 2000. Kiles requested a stay to 

pursue a Special Action with the Arizona Supreme Court and requested the court 

appoint him counsel to do so. (ROA 428; ROA 430.) The court denied both 

requests, stating, “Defendant already has competent counsel. This issue has been 

 

16 Kiles raised the additional concern that Clark had represented Powell’s wife in a 

previous legal action. “Then, today, I see Mr. Powell defending Greg Clark. So 

what is going on there? I don’t know what is going on there. Is that a conflict?” (Tr. 

Oct. 8, 1999 at 81.) Whether this created an actual conflict between Powell and 

Clark or not, it added to the conflict between Kiles and Clark.

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thoroughly litigated. If defense counsel felt that a special action were appropriate, 

he would have pursued the matter.” (ROA 427 at 1.) It is worth noting the paradox 

embedded in the court’s statement: ineffective counsel would hardly pursue a 

Special Action to establish his own ineffectiveness. Additionally, the court claimed 

that, “At this date any petition for special action would seem to be untimely as 

well.” (ROA 427 at 1.) The court did so despite the fact that “Arizona’s Rules of 

Procedure for Special Actions, A.R.S. 17B, provide no limits on the time within 

which a special action may be filed.” State ex rel. McDougall v. Tvedt, 787 P.2d 

1077, 1079 (Ariz. Ct. App. 1989). 

 Kiles had, from the beginning of Clark’s appointment, made a record that he 

was not receiving effective representation.17 It was only after the trial court’s 

repeated refusals to investigate Kiles’s claims that Kiles was forced to petition 

another juridical body for help. 

 Despite the ruling, and out of desperation, Kiles submitted his pro per 

Complaint in Special Action with the Arizona Supreme Court on March 10, 2000. 

(Case No. M-00-0006, Pet. For Special Action, Mar. 10, 2000.) He informed the 

court that Clark had (1) revealed privileged information in court, (2) to date not read 

the full file, (3) undertaken little to no pretrial investigation, and (4) lied to Kiles 

about his trial and to the court about communication with Kiles. (Case No. M-00-

0006, Pet. For Special Action, Mar. 10, 2000 at 4–5.) Kiles’s concerns included that 

Clark had aggressively misrepresented to the court the work he had done, when 

there had been little to no pretrial investigation to that point.18 (Case No. M-00-

 

17 The court had additional notice that Clark had not been providing adequate 

representation. In June 2000, Kiles wrote a letter to Judge Kongable requesting an 

attorney to represent him after being subpoenaed to testify in a different case 

regarding Clark’s ineffective assistance of another client. The request was denied, 

and therefore Kiles did not testify. 

18 Kiles noted that Clark’s assertion that he had interviewed “more witnesses than 

anybody has interviewed prior to this time, in this case” was especially outrageous. 

See Claim 3, infra. Clark’s own time logs, which he had submitted to the court after 

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0006, Pet. For Special Action, Mar. 10, 2000 at 5.) Kiles expressed his concern that 

his trial was set for the following month, but to date there had been only one single 

pretrial motion submitted by his counsel. (Case No. M-00-0006, Reply re: Pet. For 

Special Action, Apr. 10, 2000 at 4.) And despite his quickly upcoming trial date, 

Kiles said Clark was refusing to discuss with him the most basic aspects of his trial. 

(Case No. M-00-0006, Reply re: Pet. For Special Action, Apr. 10, 2000 at 6.) Kiles 

did not know what defense would be presented, and he and counsel had not yet 

discussed whether Kiles should testify at trial. (Case No. M-00-0006, Reply re: Pet. 

For Special Action, Apr. 10, 2000 at 8–9.) When he was able to speak with his 

attorneys, Kiles received conflicting information from Clark and VanDreumel. 

(Case No. M-00-0006, Reply re: Pet. For Special Action, Apr. 10, 2000 at 4.) In his 

reply, Kiles wrote that his complaint was not based on feelings, but rights: 

“Petitioner is not requesting a ‘meaningful relationship’ with counsel. He is 

requesting an ethical and adequate one.” (Case No. M-00-0006, Reply re: Pet. For 

Special Action, Apr. 10, 2000 at 9.) The Arizona Supreme Court declined to accept 

jurisdiction of the Special Action. (ROA 441.) 

6. After Kiles’s guilt-phase proceedings, Kiles continued to 

request new counsel to represent him at the penalty phase.19

 Because of Clark’s continued deficient performance, Kiles filed a pro per 

motion in January 2001 requesting new counsel and a supplement to that motion in 

March 2001. (ROA 519; ROA 522.) The motion stated that Kiles believed he was 

not adequately represented before or during his July 2000 guilt-phase proceeding. 

Kiles moreover asserted that he was not given adequate time to speak with counsel 

in order to assist in his own defense. (ROA 519 at 4.) The supplement contained an 

affidavit from a third party, a student at Arizona State University, with no prior 

 

this claim, listed no time spent interviewing witnesses. (ROA 414 at 32–49.) 

19 Throughout this Petition, Kiles uses the term “penalty phase” to refer to the 2006 

aggravation-phase and mitigation-phase proceedings together. 

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knowledge of or connection to Kiles’s case. The student had overheard Clark 

announce that he had just finished a case in Yuma where the client was guilty from 

the beginning, and the “whole thing was a waste of his time and there had been no 

point in being there at all.” (ROA 522 at 3.) Kiles stated that in light of receiving 

that affidavit, he was concerned there was no confidentiality between him and his 

attorneys, and he was again “put in a situation where he doubts he can trust his 

attorney.” (ROA 522 at 1–2.) 

 Despite the court’s repeated refusals to ensure adequate representation, Kiles 

continued to plead with the court for new counsel. Kiles made clear that he did not 

want Clark to represent him or speak for him and that there was no possible 

relationship between them. Kiles was unequivocal: “I would like the court to 

understand that what Mr. Clark says in no way represents me. I object to anything 

and everything Mr. Clark says.” (ROA 576 at 2.) Competent counsel would have 

recognized that effective representation was no longer possible and moved to 

withdraw. Despite Clark’s earlier assurance to the court that he would withdraw if 

necessary, at no point did Clark do so. (Tr. Oct. 8, 1999 at 59 (“If in fact I perceive 

some problem with adequately representing Mr. Kiles, I will be the first to step up 

to the plate.”).) 

7. Co-counsel represented Kiles while under a conflict of 

interest. 

 Compounding Clark’s irreconcilable conflict with Kiles, VanDreumel’s own 

conflicts hindered her ability to fully and adequately represent Kiles.20 In March 

 

20 Kiles believed that part of counsel’s failure to adequately represent him stemmed 

from the nature of the contract his attorneys had signed. In a pro per motion to 

appoint new counsel after the guilt phase of his trial, Kiles stated to the court that 

Clark had no incentive to continue to work on his case, as the fee structure and 

contingency fee arrangement meant that Clark was losing money by continuing to 

represent him through the penalty phase of the trial. (ROA 549 at 20.) Kiles wrote 

to VanDreumel in 2001, asserting his belief that the contingency fee had affected 

how she and Clark had handled his case. Kiles suggested VanDreumel request 

additional compensation from the court so she would represent him effectively. 

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2000, Clark hired VanDreumel to represent him before the Disciplinary 

Commission of the Supreme Court of Arizona regarding allegations by the Bar. 

(PFR2 Dkt. 1 at 16.) VanDreumel continued to represent Clark until he was 

censured again for trust account issues on June 28, 2001. (PFR2 Dkt. 1 at 16; PFR2 

Dkt. 29 Ex. 35 at 1.) Notably, Clark hired VanDreumel after Kiles had filed his 

request with the trial court to pursue a Complaint in Special Action with the Arizona 

Supreme Court against Clark, and VanDreumel represented Clark throughout the 

time Kiles sought recourse from the Bar after filing a complaint against Clark. 

VanDreumel represented both Clark and Kiles for the duration of Kiles’s guiltphase proceedings. (ROA 1189 at 16; PFR2 Dkt. 29 Ex. 35 at 1.) 

 As a result of lead counsel’s actions, VanDreumel was divided in her 

loyalties: She was representing Clark against allegations of dereliction of duties as 

an attorney, and she therefore had a duty to not undermine his position before the 

Bar. (PFR2 Dkt. 29 Ex. 35.) She also had a conflicting duty to Kiles, another client. 

To admit or support Kiles’s allegations against Clark, she would have had to 

undermine her representation of Clark before the Bar. Under the Arizona Rules of 

Professional Conduct, these incompatible duties gave rise to a conflict of interest. 

Specifically, ER 1.7 provides that with respect to current clients, a concurrent 

conflict of interest exists if “there is a significant risk that the representation of one 

or more clients will be materially limited by the lawyer’s responsibility to another 

client.” ER 1.7(a)(2). 

 VanDreumel’s relationship with Kiles showed the strain of working with 

unqualified lead counsel, as well as her own conflict between her two clients. When 

VanDreumel was first appointed, she wrote to Kiles stressing that she, Clark, and 

Kiles must present a unified front and work together to focus on the case and the 

issues. While she stated she did not believe it necessary, she did acknowledge 

Kiles’s right to submit motions pro per and represent himself if he believed counsel 

to be ineffective. She informed Kiles, however, that the most difficult aspect of the 

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case was working with him. As VanDreumel interpreted Kiles’s appropriate 

requests for communication as a sign of his lack of gratitude, she told Kiles she was 

not eager to spend her time working for someone who did not appreciate her efforts. 

 After Clark hired VanDreumel to represent him in March 2000, however, her 

representations to Kiles became increasingly inconsistent, perhaps due to the 

conflict created by lead counsel.21 While recognizing the animosity between Clark 

and Kiles, VanDreumel told Kiles there was nothing she could do to cure it; 

apparently she did not consider supporting Kiles’s efforts to obtain effective 

representation an option. Occasionally VanDreumel expressed fondness for Kiles, 

calling him “dear” and “darlin’,” and she told him he was never far from her 

thoughts. However, when Kiles insisted to VanDreumel that she get Clark off the 

case, VanDreumel responded harshly. She told Kiles that if he raised his complaints 

about Clark’s representation in open court, the jury would judge him harshly and 

most certainly sentence him to death. 

 Between his guilt and sentencing phases, Kiles alerted the court to 

VanDreumel’s conflict. On July 8, 2002, Kiles informed the court “that the 

friendship that Ms. VanDreumel shares with Mr. Clark is also detrimental to me. 

Their friendship won’t allow Ms. VanDreumel to objectively criticize Mr. Clark’s 

effectiveness on this case and this damages my chances at justice. This put [sic] Ms. 

VanDreumel in a very precarious situation.” (ROA 576 at 3; ROA 615 at 3.) Kiles 

also raised VanDreumel’s conflicting duties to her two clients to the court, stating 

that “Ms. VanDreumel is not candid about Mr. Clark’s ineffectiveness in this case,” 

possibly because VanDreumel represented Clark before the Disciplinary 

Commission of the Supreme Court of Arizona, “where Mr. Clark was censured for 

 

21 VanDreumel’s correspondence occasionally anticipated charges of deficient 

performance. For example, VanDreumel sent Kiles a letter soon after his guiltphase trial telling him that his request for copies of documents—a routine request 

for items Kiles was entitled to receive—was just another one of his attempts to 

create grounds for state post-conviction relief and that it would not work. 

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conduct in violation of his duties and obligations as a lawyer, while they were both 

still appointed to my case.” (ROA 585 at 7.) 

 The court held a status hearing in January 2002 at which the conflict was 

discussed. At that status hearing, VanDreumel misrepresented Clark’s 

qualifications under Rule 6.8 to the court: 

KILES: So here we have a capital case and here’s my 

attorney and he is in trouble with the State Bar and I have 

my other attorney representing him. I just don’t think it’s 

right, Your Honor. I think it’s a conflict. I think I should be

given new attorneys. I think because I opposed Mr. Clark 

from the beginning—and the record speaks for itself—I 

think I should be given a new trial with adequate attorneys. 

I just think the record speaks for itself, Your Honor. 

THE COURT: All right. Thank you. Mr. Clark, you want 

to respond? 

MR. CLARK: Judge, no. I think we have gone over this 

area before. The court is well-aware of what has transpired. 

THE COURT: Ms. Van Dreumel, anything from you? 

MS. VAN DREUMEL: Only, Your Honor, that I—I have 

spoken with Mr. Kiles about this issue. I explained to him 

that the State Bar proceedings are confidential and so I 

could not—it could not be discussed with him and I can 

say, as I have told Alvie, that the most recent State Bar 

proceeding involved simply a trust account issue. It was a 

money issue. And that was the sum and substance of that. 

It had nothing to do with representation and I also 

explained under 6.2 and 6.8 of the Supreme Court rules to 

Alvie, those rules require a lawyer to be in good standing 

and Mr. Clark is still in good standing with the State Bar 

and meets the qualifications set forth under the rule.22

 

22 Clark was ultimately censured by the Arizona Supreme Court for his conduct in 

the matter for which he retained VanDreumel to represent him. (PFR2 Dkt. 29 Ex. 

35 at 1.) During the course of his representation of Kiles, Clark was also informally 

reprimanded for ineffective assistance of counsel twice. On October 28, 2002, Clark 

was reprimanded for failing to adequately communicate with his client, and on 

February 9, 2004, he was placed on probation for a year for failing to communicate 

with his client, charging a fee that was not earned, and not timely refunding that 

fee. See In The Matter of Greg Clark, Attorney No. 009431, Respondent, Supreme 

Court No. SB-01-0118-D, 2001 Ariz. LEXIS 99 (2001); (see also PFR2 Dkt. 22 

Ex. 4 at 1–2; PFR2 Dkt. 29 Ex. 38 at 1–2).

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(Tr. Jan. 7, 2002 at 68–69.) But Clark had again been suspended for non-payment 

of dues from April 28, 2000 to May 5, 2000. In 2002, he would not have met Rule 

6.8’s requirement that an attorney remain in good standing for the five years 

immediately prior in order to qualify for a capital appointment.

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8. Counsel’s conflicts and deficient performance undermined 

the defense team and mitigation work in preparation for 

Kiles’s penalty-phase proceedings. 

 Clark and VanDreumel’s inadequate representation and conflicted, 

contentious relationships with Kiles adversely affected other members of the 

defense team. After having tried unsuccessfully to work with counsel, the first 

mitigation specialist hired after the guilt-phase trial, Jan Dowling, resigned. 

 The court approved funding and appointment for Jan Dowling on October, 

6, 2000. (ROA 510 at 1.) Dowling had been a practicing lawyer and was an 

experienced capital mitigation specialist at the time of her appointment. Dowling 

found Kiles an easy client to work with, but struggled to maintain communication 

and a working relationship with Kiles’s attorneys. (ROA 533 Ex. A at 3–4.) 

 One of the precipitating events that necessitated Dowling’s resignation was 

when VanDreumel released Dowling’s work product, clearly marked “Not for 

Distribution to Client,” to Kiles.24 (ROA 533 Ex. A at 2.) When Dowling asked 

VanDreumel why she had released the documents, VanDreumel admitted that in 

any other case she would not have done so. However, in this case, Kiles had 

 

23 Additionally, under Rule 63(a) of the Rules of the Arizona Supreme Court, within 

ten days of his suspension in 2000, Clark was required to provide notice to 

co-counsel, the court, opposing counsel, and his client that he had been suspended. 

There is no evidence in the record that Clark fulfilled this obligation. 

24 The memos VanDreumel shared with Kiles contained notes from Dowling about 

her perceptions of Kiles’s close family members and friends. These notes were 

intended to assist the defense team, and would have included, for instance, 

Dowling’s personal observations about whether a witness was candid or whether a 

witness would seem credible to a jury. These observations could have caused Kiles 

offense and damaged Dowling’s relationship with Kiles, harming her ability to get 

information from him that was essential to the mitigation investigation. 

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continued to file motions with the court alleging ineffective assistance of counsel, 

and he had filed a complaint with the Bar against Clark. VanDreumel defended her 

decision by explaining that, by providing work product to Kiles, VanDreumel 

hoped to mitigate his dissatisfaction with counsel.25 But by continuing to focus on 

Clark’s disciplinary issues, VanDreumel placed Clark’s interests before Kiles’s and 

thus furthered the conflict of interest. VanDreumel’s decision not only undermined 

a member of her defense team, it threatened the critical relationship between the 

mitigation specialist and Kiles. 

 Dowling, who as a seasoned mitigation specialist had experience working 

with numerous defense teams, was also greatly concerned about Clark’s 

involvement in Kiles’s case. In June 2001, after she had been on the case for eight 

months, Dowling wrote to Judge Kongable: “In particular, lead counsel, Greg 

Clark, made no effort to contact or meet me. Months passed, and counsel made no 

effort to meet and discuss the case, or comment on the information being gathered.” 

(ROA 533 Ex. A at 1.) During her time working on the Kiles case, there was but a 

single hour of “meaningful discussion” with counsel, which was the only 

interaction Dowling ever had with Clark. (ROA 533 Ex. A at 1–2.) Dowling stated 

that this was not typical: “In all of my other cases, the two attorneys and I actually 

discuss the case.” (ROA 533 Ex. A at 1–2.) Dowling concluded that this was not a 

case where attorneys had different strategies or working styles; rather, “[t]his is a 

case where both the client and I have been completely abandoned by counsel.” 

(ROA 533 Ex. A at 3.) 

 In response, VanDreumel filed a motion to appoint a new mitigation 

specialist, and she took the opportunity to attack Dowling and the claims in her 

 

25 VanDreumel did not truly believe, as she stated to Dowling, that Kiles should 

receive copies of all documentation in his case; she was merely attempting to 

navigate her role between Clark and Kiles in disclosing Dowling’s memos. 

VanDreumel later told Kiles he did not need a copy of the mitigation notebook 

prepared for his penalty phase (although the State was provided one). 

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letter. (ROA 533 Ex. C at 1–7.) Dowling wrote back to Judge Kongable, stating that 

VanDreumel was not being honest with the court, and Dowling offered to provide 

documentation of those misrepresentations. (ROA 533 Ex. D at 1–5.) The court 

demurred. Judge Kongable wrote back to Dowling: 

I have read your letter of July 6, 2001 and noted the points 

which you raise. Mr. Kiles and Ms. Boyte have voiced 

similar concerns. 

After some deliberation I have concluded that nothing 

positive would result from a hearing in court in an attempt 

to establish “who is right and who is wrong,” at least at this 

time. I strongly suspect that whatever sentence I end up 

imposing, there will be filed a petition for post conviction 

relief alleging ineffective assistance of trial counsel. In the

overall scheme of things that would be the appropriate time 

for me to take action, if any. 

(ROA 533 Ex. E at 1.) 

 After Dowling resigned, the ongoing mitigation work in Kiles’s case 

proceeded, albeit deficiently, as the work was hampered by Clark’s complete lack 

of interest or involvement. Although another mitigation specialist was subsequently 

appointed (ROA 530 at 1), Clark’s failure to consider mitigation hindered Kiles’s 

penalty-phase case from the beginning. VanDreumel told Kiles that competent 

counsel would have hired a mitigation specialist when counsel was first appointed 

—though when Kiles questioned why this was not done, VanDreumel defended 

Clark for not having done so. Meanwhile, VanDreumel admitted to the mitigation 

specialist hired after Dowling’s withdrawal that Clark had been ineffective for 

failing to bring on the mitigation specialist immediately after he was appointed. 

 Further, while VanDreumel told Kiles in correspondence that she was 

continuing to fight battles for him every day and that she was ready to tackle the 

issues in his case, she admitted to the mitigation specialist that she was trying to 

keep too many balls in the air, was at her limit managing the work on Kiles’s case, 

and needed assistance. VanDreumel also directed the mitigation specialist to check 

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on Clark’s representations, as VanDreumel herself did not trust them.26 By the time 

Kiles’s sentence was handed down, Clark had ceased keeping up appearances of 

adequately representing his client; Kiles had not spoken to Clark outside of a 

courtroom in years, and Clark did not even show up for the sentencing. (ROA 924 

at 1.) 

Kiles was sentenced to death, after eight years of representation by dishonest, 

unqualified, and conflicted counsel. Over those eight years, Kiles repeatedly begged 

his attorneys to effectively advocate for him, but for personal, professional, and 

financial reasons, they did not. 

B. Lead counsel’s lack of qualifications and affirmative 

misrepresentations of those qualifications deprived Kiles of his 

right to due process and qualified counsel. 

 To provide the “counsel” guaranteed by the Sixth and Fourteenth 

Amendments, a lawyer must satisfy standards set by the courts for practice. See

Reese v. Peters, 926 F.2d 668, 669 (7th Cir. 1991) (“The ‘Counsel’ to which the 

sixth amendment refers is a professional advocate who meets the standards set by 

the court.” (citing Solina v. United States, 709 F.2d 160 (2d Cir. 1983))). 

Performance standards for attorney appointment are specifically promulgated to 

ensure adequate representation and to preserve a defendant’s right to a fair trial. A 

court that appoints counsel who falls short of those standards also falls short of 

ensuring the constitutional rights of due process and effective representation. See 

 

26 Moreover, the correspondence between Kiles and VanDreumel contains troubling 

hints about what VanDreumel was telling Kiles in person and on the phone. Kiles 

believed at one point, and accordingly informed the court, that VanDreumel would 

support Kiles about Clark’s ineffectiveness at an upcoming hearing, though 

VanDreumel ultimately declined to do so. (ROA 615 at 3.) Kiles said VanDreumel 

was using him to deliver messages to the court because she could not get in contact 

with Clark and that she was using Kiles as a sounding board to complain about 

Clark. Shortly before his penalty phase, Kiles asked if he could take VanDreumel 

up on her offer to speak with the State, the judge, and Clark off the record and have 

another attorney appointed as lead counsel. (Kiles had only objected to this proffer 

previously because it would be off the record.) Whether VanDreumel’s offer was 

in earnest is unknown because of her own conflict of interest. 

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id. at 670. Especially in a capital case, the defendant “has a substantial and 

legitimate expectation that he will be deprived of his liberty” only after the state has 

followed its own statutory guidelines setting forth the mandatory protections 

guaranteed to preserve a defendant’s right to a fair trial and adequate representation. 

Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). The expectation of adequate counsel, 

and the expectation that the state will adhere to its own rules ensuring that right, is 

a fundamental liberty interest “that the Fourteenth Amendment preserves against 

arbitrary deprivation by the State.” Id. 

 In Arizona, the appointment of capital-defense counsel who did not meet the 

requirements under Rule 6.8 deprives a capital defendant of his Sixth and 

Fourteenth Amendment rights. Where a state has provided specific regulations 

regarding how capital trials shall proceed, “it is not correct to say that the 

defendant’s interest” in having those rules adhered to, especially when those rules 

were created specifically to protect his rights, “is merely a matter of state procedural 

law.” Id. “The failure of a state to abide by its own statutory commands” implicates 

“a liberty interest protected by the Fourteenth Amendment against arbitrary 

deprivation by a state.” Fetterly v. Paskett, 997 F. 2d 1295, 1300 (9th Cir. 1993). 

The State of Arizona failed to ensure Kiles received adequate representation in 

compliance with its own law, in violation of Kiles’s Sixth and Fourteenth 

Amendment rights. 

1. Lead counsel did not satisfy Arizona’s standards for 

appointment as capital defense counsel, depriving Kiles of 

his due-process rights. 

 Rule 6.8, promulgated by the Arizona Supreme Court, sets forth the 

qualifications required for appointment in capital cases.27 See, e.g., State v. Snelling, 

 

27 The Rules referenced here are those applicable in 1998, at the time of Clark’s 

appointment; though some have changed in numbering, they are substantively the 

same as those presently in force. 

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236 P.3d 409, 413 (Ariz. 2010). As the Arizona Attorney General has emphasized, 

these “standards of competency” are both “comprehensive and mandatory.” Brief 

of Respondents-Appellants at 9, 2001 WL 34092875, Spears v. Stewart, 283 F.3d 

992 (9th Cir. 2002). Among other requirements, Rule 6.8 restricts eligibility to 

serve as counsel in capital trials to attorneys who “have been a member in good 

standing of the State Bar of Arizona for at least five years immediately preceding 

the appointment.” 

 Because Clark did not meet this requirement, the State of Arizona failed to 

adhere to its own “comprehensive and mandatory” rules for appointment of counsel 

in capital cases when Clark was appointed as Kiles’s lead counsel. While “good 

standing” is not defined in Rule 6.8 itself, the term appears in Rule 33(d) of the 

Rules of the Arizona Supreme Court, which describes those eligible for admission 

pro hac vice to practice in Arizona courts. Those who submit an application to 

practice pro hac vice are required to be in good standing, “currently eligible to 

practice in those courts” in which the submitter was already admitted, and “not 

currently suspended or disbarred in any court” at the time in which the application 

is made. Clark was suspended by the Bar for non-payment of dues mere months 

before his appointment to Kiles’s case. Accordingly, Clark was not in good standing 

with the Bar at that time, and he thus did not meet the requirement under Rule 6.8 

that he be in good standing for the five years immediately preceding his 

appointment as lead counsel in Kiles’s case. Indeed, though Clark submitted a 

motion claiming he satisfied Rule 6.8 requirements, he failed to attach a Certificate 

of Good Standing from the Bar, possibly because under Rule 74(c) of the Rules of 

the Arizona Supreme Court, the certificate would have noted his suspension and his 

prior public discipline for ineffective assistance of counsel. 

 The State of Arizona’s failure to ensure the requirements of Rule 6.8 were 

met is not a mere state procedural matter, as is illustrated by the string of 

disciplinary measures and sanctions against Clark throughout his representation of 

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Kiles.28 The requirements of Rule 6.8 were designed to prevent what ultimately 

occurred—the consistent failure of appointed counsel to conduct himself in 

accordance with the ethical rules governing attorneys. The denial here of procedural 

due process implicates every decision that followed made by counsel on Kiles’s 

case, leading to the unreliable and arbitrary imposition of a death sentence. 

 The State of Arizona failed to follow its own procedures ensuring that capital 

defendants receive adequate counsel under the Sixth and Fourteenth Amendments. 

“Such an arbitrary disregard of the petitioner’s right to liberty is a denial of due 

process of law.” Hicks, 447 U.S. at 346. Kiles was denied the guaranteed right to 

effective counsel in violation of his Constitutional rights, and as his sentence is 

arbitrary and unreliable, it must be overturned. 

2. Lead counsel and co-counsel misrepresented Clark’s 

qualifications to the court, denying the court the ability to 

protect Kiles’s due process rights. 

 On October 8, 1998, the trial court conducted an inquiry into whether Clark 

and his co-counsel at the time, Mark Reeves, were qualified to be appointed to a 

capital case under Rule 6.8. Clark’s statements during the trial court’s inquiry into 

his eligibility for appointment under Rule 6.8 denied the court the ability to make 

an informed and accurate decision and constituted ineffective assistance of counsel, 

as well as a denial of Kiles’s procedural due-process rights protected under the 

Fourteenth Amendment. Hicks, 447 U.S. at 346. 

 Mary Boyte, Kiles’s previous state post-conviction counsel, raised two 

concerns at the court’s inquiry about Clark’s appointment: (1) Clark’s public 

censure for ineffective assistance of counsel on a juvenile transfer case; and (2) 

Clark’s suspension from the Bar for non-payment of dues. (Tr. Oct. 7, 1998 at 5–

6.) Clark misrepresented both of those issues to the court.29 He informed the court 

 

28 These disciplinary measures are discussed in footnote 22, supra. 

29 In submitting a bid for appointment to Kiles’s case, Clark misrepresented to the 

Yuma County Legal Defender how many clients he had on death row. Clark said 

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that the first was merely a “judgment call,” after he himself had conditionally 

admitted his conduct failed to meet the ethical duties of competence and diligence. 

In reviewing the claims against Clark, the Court of Appeals of Arizona found there 

was a “failure to even attempt” to advocate for his former client. See Matter of 

Appeal in Maricopa Cty., Juvenile Action No. JV-511576, 925 P.2d 745, 748 (Ariz. 

Ct. App. 1996) (quoting Strickland, 466 U.S. at 694). He also stated to the court 

that the Bar had made the mistake regarding payment of dues, and that it had 

rectified it immediately. This was not true. The Arizona Supreme Court issued an 

order regarding non-payment, and the Bar only reinstated Clark after he submitted 

payment, two weeks later. 

 At a January 2002 hearing, VanDreumel, who was at the time representing 

Clark before the Bar on another matter,30 also misrepresented Clark’s qualifications 

for appointment under Rule 6.8. VanDreumel informed the court that Clark was in 

good standing and had remained in good standing, and thus that he “meets the 

qualifications set forth under the rule.” (Tr. Jan. 7, 2002 at 68–69.) As stated above, 

to qualify under Rule 6.8, Clark would have had to remain in good standing with 

the Bar for the five years immediately preceding the appointment. But Clark had 

not remained in good standing; he had again been suspended for non-payment of 

dues in 2000. Thus, Clark would not have been eligible for appointment to a capital 

 

he only had one former client sitting on death row; upon information and belief, he 

had at least three. See footnote 3, supra. Clark had previously misrepresented his 

work history and was exposed for falsely claiming to be a former Navy SEAL and 

lying about his military service in Vietnam. According to retired U.S. Navy veteran 

Jim Wade, who directed the investigation into Clark’s falsehoods, Clark also 

claimed to have “participated in the failed Iran hostage rescue operation Desert 

One.” 

30 The Arizona Supreme Court censured Clark in June 2001 for failure to respond 

to a request for information from the Bar, failure to provide full and complete 

responses to inquiries from the Bar, and for trust account violations. (PFR2 Dkt. 29 

Ex. 35 at 1.) The check Clark submitted to show the court he had completed his 

capital training, and that he was qualified to be lead counsel, had been improperly 

issued from his IOLTA account. (ROA 381 at 6.) 

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case at the time of VanDreumel’s representation. 

 Further, VanDreumel and the court should have already been aware of 

Clark’s failure to meet the good standing requirement. Under Rule 63(a) of the 

Rules of the Arizona Supreme Court, Clark was required to notify co-counsel, the 

court, opposing counsel, and the client of his suspension in 2000. There is no 

evidence in the record that he did so, and the court seems to have been unaware of 

his suspension. Therefore, VanDreumel either knowingly misrepresented Clark’s 

disciplinary history to the court, or she was misled as to Clark’s qualifications and 

subsequently misled the court. 

 Ultimately, Clark’s misrepresentations and failure to act ethically and 

professionally resulted in the court’s extralegal appointment, violating the Arizona 

Rules of Criminal Procedure. The process that permitted Clark’s appointment had 

a substantial and injurious effect on Kiles’s conviction and sentencing, as discussed 

below in the numerous claims of ineffective assistance of trial counsel.31 See Brecht 

v. Abramson, 507 U.S. 619, 623 (1993); see also, e.g., infra, Claim 3. Because Kiles 

failed to receive qualified counsel as required by state law, violating his Sixth 

Amendment right to counsel and his liberty rights as protected under the Fourteenth 

Amendment, and that failure had substantial and injurious effect, habeas relief is 

warranted. Hicks, 447 U.S. at 346; Brecht, 507 U.S. at 623. 

C. Kiles’s counsel were ineffective due to a conflict of interest,

denying Kiles his right to competent and un-conflicted 

representation. 

 “The Sixth Amendment right to counsel requires effective assistance by an 

attorney, which has two components: competence and conflict-free representation.” 

Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994) (citing Wood v. Georgia, 450 

U.S. 261, 271 (1981)). The right to conflict-free representation is a right to 

 

31 Kiles incorporates by specific reference into this discussion of prejudice the 

following claims of ineffective assistance of trial counsel: Claim 2, Claim 3, Claim 

4, Claim 5, Claim 6, Claim 15, and Claim 16, infra. 

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counsel’s undivided loyalty, and it is evaluated by a different standard than one 

measuring competence. See Cuyler v. Sullivan, 446 U.S. 335, 348–49 (1980); 

Wood, 450 U.S. at 271. The Supreme Court has stated that to establish a Sixth 

Amendment violation based on a conflict of interest, a defendant must make two 

showings: (1) that counsel actively represented conflicting interests, and (2) that the 

actual conflict of interest adversely affected the lawyer’s performance. Hovey v. 

Ayers, 458 F.3d 892, 907–08 (9th Cir. 2006) (citing Cuyler, 446 U.S. at 348–50). 

Unlike a challenge to counsel’s competency, prejudice is presumed if the defendant 

shows both prongs have been met. Strickland, 466 U.S. at 692; United States v. 

Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). 

 Although the test articulated in Cuyler involved an attorney representing two 

clients with conflicting interests, the presumption of prejudice extends to conflicts 

between a client and his lawyer’s personal, professional, or financial interests. 

Mannhalt v. Reed, 847 F.2d 576, 579–80 (9th Cir. 1988); see also Pometta v. Poole, 

992 F.2d 1220 (9th Cir. 1993); United States v. Hoffman, 733 F.2d 596, 601–02 

(9th Cir. 1984) (finding a conflict based on attorney’s failure to notify federal judge 

of state bar suspension); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 

1980) (finding a conflict based on attorney’s private financial interests). 

 Counsel in this case actively represented conflicting interests. Clark created 

the conflict of interest when he hired VanDreumel to defend his conduct as an 

attorney before the Bar. At the same time that she represented Clark, VanDreumel 

also represented a client, Kiles, who was actively litigating Clark’s ineffective 

assistance and conduct as an attorney before the Arizona Supreme Court and the 

Bar. Clark, as lead counsel, was responsible for both the effective representation of 

his client and the integrity and working relationship of the defense team; he failed 

in both respects. VanDreumel could not have assisted Kiles in ensuring he received 

effective assistance without undermining Clark’s interests before the Bar; she 

furthered the conflict by accepting the dual representation and failing to recognize 

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that her actions sacrificed one client’s interests in favor of another. 

 There is no doubt that VanDreumel’s representation was adversely affected 

by her conflict of interest; VanDreumel admitted so to mitigation specialist Jan 

Dowling. VanDreumel shared memos from Dowling with Kiles that were clearly 

marked as “Not for Distribution to Client.” VanDreumel justified doing so because 

Kiles was filing motions with the court and had just filed a complaint with the Bar 

about Clark’s ineffective assistance. VanDreumel’s decision was one of the issues 

that led Dowling to resign. In other words, VanDreumel chose to undermine a 

specialist hired on one client’s case to benefit another client. This was not sound 

legal strategy, but an attempt to navigate the conflict of interest lead counsel had 

created. 

 Clark was not providing effective assistance, so VanDreumel had a duty to 

speak to the court on behalf of Kiles. That she could not and did not do so satisfies 

the two-pronged test in Cuyler. Instead, during a hearing, VanDreumel 

misrepresented Clark’s qualifications under Rule 6.8 after Kiles raised his concerns 

about her representation of Clark to the court. (Tr. Jan. 7, 2002 at 68–69.) 

 Additionally, VanDreumel made troubling attempts to silence her client 

about lead counsel’s ineffective assistance, which shed light on the conflict under 

which she was laboring. In correspondence, Kiles demanded that VanDreumel take 

action to represent him and remove Clark. In response, VanDreumel insisted to 

Kiles that raising Clark’s ineffective assistance during his trial would cause a jury 

to judge him harshly and condemn him to death. She was protecting Clark, her 

client and her co-counsel, with whom she had a personal and professional 

relationship, at Kiles’s expense. See United States v. Williams, 594 F.2d 1258, 1260 

(9th Cir. 1979) (finding sufficient conflict existed where the attorney-client 

relationship was “a stormy one” with “threats, and counter-threats”). 

 “The very premise of our adversary system of criminal justice is that partisan 

advocacy on both sides of a case will best promote the ultimate objective that the 

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guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 

862 (1975). In Kiles’s case, the State received partisan advocacy, while Kiles’s 

counsel had divided loyalties. Moreover, counsel’s interests directly contradicted 

Kiles’s interest. Prejudice must be presumed, as a conflict between Kiles and his 

counsel existed and adversely affected counsel’s performance. Cuyler, 446 U.S. at 

348–50. 

D. The irreparably fractured relationship between Kiles and Clark 

adversely affected the representation Kiles received. 

 To “compel one charged with grievous crime to undergo a trial with the 

assistance of an attorney with whom he has become embroiled in irreconcilable 

conflict is to deprive him of the effective assistance of any counsel whatsoever.” 

Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970); see also United States v. 

Moore, 159 F.3d 1154, 1158 (9th Cir. 1998). Accordingly, the “Sixth Amendment 

requires on the record an appropriate inquiry into the grounds for such a motion [for 

new counsel], and that the matter be resolved on the merits before the case goes 

forward.” Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000). Further, if a “serious 

conflict did exist that resulted in the constructive denial of assistance of counsel, no 

further showing of prejudice is required,” and the trial is “presumed to have been 

unfair.” Id. at 1027; see also Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 

1994); Williams, 594 F.2d at 1260. 

 The conflict between Kiles and Clark deprived Kiles of his effective 

assistance of counsel. As stated above, to establish an ineffective assistance of 

counsel claim based on conflict of interest, a defendant must show that “an actual 

conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. 

at 350. 

 Sufficient conflict exists when the defendant was forced to trial with the 

“assistance of a particular lawyer with whom he was dissatisfied, with whom he 

would not cooperate, and with whom he would not, in any manner whatsoever, 

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communicate.” Brown, 424 F.2d at 1169. Kiles stated to the court, “If you keep Mr.

Clark on my case, I don’t know how he is going to be able to defend me because 

there is some things I need to tell my attorney, but I will not tell him.” (Tr. Aug. 6, 

1999 at 17.) “When a defendant accuses his counsel of improper behavior and the 

counsel disputes his client’s accusations, an actual conflict of interest results 

because ‘any contention by counsel that defendant’s allegations were not true would 

(and did) contradict his client.’” United States v. Shorter, 54 F.3d 1248, 1252–53 

(7th Cir. 1995). Clark repeatedly defended himself to the court by disparaging his 

client. (ROA 393 at 1; ROA 414 at 4.) As Kiles could not communicate with 

Clark, and as Clark blamed their failure to communicate on Kiles, there could be 

no attorney-client relationship whatsoever. Accordingly, Kiles and Clark had a 

conflict of the sort contemplated by Brown. 

 Further, if a “defense attorney was required to make a choice advancing his 

own interests to the detriment of his client’s interests,” an actual conflict of interest 

exists, meeting the first prong of a Cuyler test. United States v. Horton, 845 F.2d 

1414, 1419 (7th Cir. 1988). Thus, the court hearings on Kiles’s motions for new 

counsel during the very first year of Clark’s appointment only helped solidify the 

conflict between Kiles and Clark. At those hearings, Clark was representing 

himself, not his client. Therefore the “interests of counsel were diametrically 

opposed to those” of Kiles. United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 

1996) (holding that the trial court's determination that an evidentiary hearing was 

warranted heightened the conflict). Throughout the eight years Clark represented 

Kiles, Clark’s continued need to justify his performance before the court, to the 

detriment of his client, resulted in a conflict of interest under Cuyler that was never 

resolved. This is especially true in light of the ongoing Bar proceedings against 

Clark—his interests were necessarily split between adequately representing Kiles 

and protecting himself against further disciplinary action. 

Cuyler’s second prong, requiring an adverse effect, is satisfied where an 

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attorney’s conflict of interest causes a “lapse in representation contrary to the 

defendant’s interests.” Wilson v. Mintzes, 761 F.2d 275, 286 (6th Cir.1985) (quoting 

Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir. 1983)).32 Mary Boyte testified 

before the court only a year after Clark’s appointment, “There is, as best as I can 

tell, no attorney-client relationship between Mr. Kiles and Mr. Clark.” (Tr. Oct. 8, 

1999 at 31.) The lapse in representation lasted for another seven years. It was not a 

reasonable legal or ethical decision for Clark to continue to represent Kiles, with 

whom Clark had “no attorney-client relationship.” Clark’s continued representation 

was contrary to Kiles’s interest, as Kiles stated repeatedly he could not assist Clark, 

and therefore himself, in his own defense. The irreconcilable conflict between Clark 

and Kiles had an adverse effect on Kiles’s representation. Therefore, Kiles failed to 

receive the effective representation required under Cuyler and the Sixth 

Amendment. See Brown, 424 F.2d at 1170. 

E. The contract structure under which Kiles’s counsel were 

appointed created a financial conflict of interest. 

 Kiles’s counsel were appointed to his case under contracts that gave rise to a 

conflict of interest and that had an adverse effect on representation, in violation of 

Kiles’s Sixth, Eighth, and Fourteenth Amendment rights. 

 Both lead and co-counsel in Kiles’s case had contracts for appointment that 

amounted to contingency fees and that disincentivized effective representation in a 

capital case. Clark’s contract stated Clark would receive $25,000 for accepting lead 

counsel appointment on Kiles’s case and would receive another $25,000 if the case 

went to trial. (Tr. Nov. 29, 1999 at 6.) VanDreumel agreed to accept $10,000 for 

taking Kiles’s case, with another $10,000 if the case went to trial. Accordingly, 

counsel (especially Clark, as VanDreumel was appointed not long before trial) had 

 

32As noted above, Kiles’s prior attorneys were required to refund their fee after they 

withdrew. (ROA 1189 at 26; PFR2 Dkt. 22 Ex 11.) Financial concerns may have 

been motivating Clark’s insistence he remain Kiles’s attorney contrary to Kiles’s 

interests. 

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a financial interest in not adequately representing Kiles at pretrial proceedings, as 

the first lump sum was paid upon appointment. There was no additional 

compensation for adequate representation, but there was compensation for 

gambling with Kiles’s life at trial.33 Counsel’s contracts not only created a conflict 

at the pretrial stage—under the contracts’ express terms, counsel were paid for 

guilt-phase representation—but no additional funds were to be disbursed for 

penalty-phase representation. These financial incentives led to deficient 

performance of counsel at both phases of trial, and a capital sentence against Kiles 

that is arbitrary and unreliable. 

 Flat fee and contingency fee contracts are not per se violations of the Sixth 

Amendment. Rather, the defendant must show that the fee arrangement constituted 

an actual conflict of interest. See Cuyler, 446 U.S. at 348. “Under this standard, an 

‘actual conflict’ is ‘a conflict that affected counsel’s performance’—as opposed to 

a mere theoretical division of loyalties.” United States v. Wells, 394 F.3d 725, 733 

(9th Cir. 2005) (quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002)). 

Additionally, the defendant must show adverse effect. Beyond that, a showing of 

prejudice is not required, “but only ‘that some plausible alternative defense strategy 

or tactic might have been pursued but was not and that the alternative defense was 

inherently in conflict with or not undertaken’” due to the attorney’s financial 

interests. Id. (quoting United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996)). 

 The contract structure under which Clark and VanDreumel were appointed 

created clear conflicts of interest and affected their representation of Kiles’s 

interests. That Clark stood to benefit financially if Kiles went to trial, and to obtain 

the flat fee promised regardless of the hours worked, adversely affected Clark’s 

efforts on behalf of Kiles at the pretrial stage and after the guilt phase. 

 

33 VanDreumel has stated that Clark, as lead counsel, made all the strategic 

decisions as to the defenses to be raised and the witnesses called at the guilt phase 

and that those decisions were made before VanDreumel’s appointment to Kiles’s 

case. 

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 Adequate representation of capital defendants requires extensive pretrial 

investigation and mitigation work, work that would conflict with the terms of a 

contract that financially incentivized and compensated trial work, not pretrial work. 

The emphasis on pretrial representation was the norm expected of capital defense 

attorneys at the time of Clark’s and VanDreumel’s appointments. In 1989, the 

American Bar Association (ABA) promulgated its Guidelines for the Appointment 

and Performance in Death Penalty Cases, which it had drafted over the course of 

several years and which reflected a national consensus among capital defense 

practitioners as to the obligations of counsel for capital cases in the 1980s. See ABA 

Guidelines for the Appointment and Performance in Death Penalty Cases (1989)34

(hereinafter “1989 ABA Guideline(s)”). The Supreme Court has consistently relied 

upon guidelines from the ABA and similar professional groups to inform the 

inquiry into reasonable professional conduct. See, e.g., Padilla v. Kentucky, 559 

U.S. 356, 366–67 (2010) (“We long have recognized that the ‘[p]revailing norms 

of practice as reflected in American Bar Association standards and the like . . . are 

guides to determining what is reasonable. . . .’” (omissions in original) (quoting 

Strickland, 466 U.S. at 688)); see also, e.g., Bobby v. Van Hook, 558 U.S. 4 (2009) 

(per curiam); Ariz. Att’ys for Crim. Just. & Ariz. Cap. Representation Project, 

Arizona Capital Case Defense Manual (1995). 

 As the 1989 ABA Guidelines explained, effective advocacy in a capital case 

must begin immediately upon appointment. “Counsel should conduct independent 

investigations relating to the guilt/innocence phase and to the penalty phase of a 

capital trial. Both investigations should begin immediately upon counsel’s entry 

into the case and should be pursued expeditiously.” 1989 ABA Guideline 11.4.1(A). 

As to the guilt-phase investigation, while Clark did initially request funding for an 

investigator, one was not hired until nearly a year after his appointment. (ROA 384 

 

34 The ABA updated these guidelines in 2003. The updated version will hereinafter 

be referred to as the “2003 ABA Guideline(s).” 

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at 1; Tr. Oct. 8, 1999 at 74.) Moreover, Clark testified that his investigation was not 

independent, but based almost entirely upon information provided by the State.35

Unfortunately, Clark’s decision not to conduct any independent investigation was 

a fiscally sound, financially responsible decision under his contract. The flat fee, 

contingency contract in this case created a conflict of interest between Kiles’s right 

to effective representation and Clark’s financial welfare. This is undoubtedly why 

the ABA Guidelines adopted an hourly rate model of compensation: “Capital 

counsel should be compensated for actual time and service performed. The 

objective should be to provide a reasonable rate of hourly compensation which is 

commensurate with the provision of effective assistance of counsel.” 1989 ABA 

Guideline 10.1(A). 

 Concurrent with the guilt-phase investigation, the mitigation investigation 

“should comprise efforts to discover all reasonably available mitigating evidence 

and evidence to rebut any aggravating evidence that may be introduced by the 

prosecutor.” 1989 ABA Guideline 11.4.1(C). In Kiles’s case, lead counsel failed to 

do any mitigation investigation, before or after the guilt phase. Indeed, Clark had 

access to boxes and boxes worth of mitigation material from Kiles’s first successful 

state post-conviction petition, but rather than review that important information in 

the critical period before the trial, Clark insisted it was “worthless.” (Tr. Oct. 8, 

1999 at 65.) No mitigation investigation was undertaken by Clark until after Kiles 

had been found guilty. (ROA 509 at 1.) This was not in line with long-standing 

norms of appropriate representation for capital representation at the time. 

 

35 “Mr. Powell and I sat down and went through the complete trial record of this 

case, located every piece of evidence, went through every piece of evidence that 

was used in the last trial, judge. We ordered additional pieces of evidence because 

from what we now know of the trial from the appellate records, there are items of 

evidence that are certainly out there that are to Mr. Kiles’ advantage. We have 

located those and I have ordered copies of all of the photographs that were used 

both in the trial and the photographs that were not used in the trial.” (Tr. Aug. 6, 

1999 at 31.) 

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VanDreumel admitted as much to Kiles and to the mitigation specialists, who were 

hired later in the proceedings. 

 Once Kiles’s guilt-phase trial was over, the fee arrangement still created a 

financial conflict for both of his counsel. Once the second lump sum was paid for 

the guilt-phase proceeding and no more funds were forthcoming, any additional 

work on Kiles’s case went unpaid. Clark was rarely involved in the case after the 

guilt phase was completed. VanDreumel alerted the court to Clark’s inaction when 

she wrote asking for additional funds, stating that she alone had done all post-trial 

work and that she could no longer do so without financial compensation. While the 

court approved additional monies, VanDreumel still did the majority of the work 

for Kiles’s penalty phase with little assistance from Clark, who had no financial 

incentive to assist. 

 Given the financial and personal conflicts of interest under which Kiles’s 

attorneys represented him at the penalty phase, “it is virtually impossible for a 

reviewing court to determine what evidence would have been presented if substitute 

counsel had been appointed, or how the presentation of testimony might have been 

affected by trial counsel’s conflicting interest.” Del Muro, 87 F.3d at 1080. Indeed, 

as discussed below, trial counsel failed to investigate and present a wealth of 

mitigation that has since been uncovered. See infra, Claim 6. What is clear is that 

Kiles was denied his right to un-conflicted, effective representation. The perverse 

incentives of the contract and the adverse effect on representation harmed the 

quality of representation Kiles received. 

 Because the fee arrangement with Kiles’s counsel created a conflict of 

interest adversely affecting their representation both before and after trial, Kiles’s 

conviction and sentence are unreliable and in violation of his constitutional right to 

effective assistance. 

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F. The state post-conviction court’s decision that Kiles failed to state 

a colorable claim for relief was unreasonable and does not bar 

relief. 

 Kiles raised these claims below in similar form on direct appeal. (DA2 Dkt. 

86 at 66–84.) The Arizona Supreme Court declined to consider the claims, saying 

that they were more appropriate for a state post-conviction proceeding. See State v. 

Kiles, 213 P.3d 174, 183–84 & n.12 (Ariz. 2009) (“Because we do not address his 

claims of ineffective assistance, we express no opinion on the allegations or their 

veracity and leave them for Kiles to raise in a proper proceeding”). 

 These claims were then appropriately presented in Kiles’s state postconviction relief petition. (ROA 1189 at 10–18, 23–30.) The post-conviction court’s 

order was the last reasoned state-court decision, and it is therefore the subject of 

this Court’s review. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The state 

post-conviction court denied the claims on the merits, ruling that Kiles failed to 

state a colorable claim. (ROA 1214 at 1). 

 This denial, with its justification that Kiles’s claim lacked the requisite 

specificity, was unreasonable. Kiles’s state post-conviction petition included details 

on Clark’s suspensions from the Bar. It also included facts that demonstrated that 

the conflicts under which counsel labored while representing Kiles were actual, not 

theoretical. (See, e.g., ROA 1189 at 11, 12–18.) Additionally, the petition laid out 

a number of ways in which counsel performed deficiently, adversely affecting 

Kiles, as a result of those conflicts. (See, e.g., ROA 1189 at 28, 30 (“[T]he 

relationship between Mr. Kiles and Mr. Clark was irrevocably fractured,” which 

resulted in a failure to communicate and establish an attorney-client relationship); 

see also ROA 1189 at 23–30.) Because the allegations in Kiles’s state postconviction petition were adequately specific and would, if proven, entitle him to 

relief, he stated a colorable claim. See Phillips v. Woodford, 267 F.3d 966, 992 (9th 

Cir. 2001). The state court’s denial was contrary to, or involved an unreasonable 

application of, clearly established federal law as determined by the Supreme Court. 

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See 28 U.S.C. § 2254(d)(1). The state court’s denial was also based upon 

unreasonable factual determinations in light of the record before the court. See 28 

U.S.C. § 2254(d)(2). 

 Kiles has, therefore, satisfied the strictures of § 2254(d), and this Court must 

review the merits of his claim de novo. See Frantz v. Hazey, 533 F.3d 724, 736 (9th 

Cir. 2008) (en banc) (stating that once § 2254(d)’s limitation on relief has been 

satisfied, a federal court conducts a de novo review of the underlying constitutional 

violation).36 

G. Taken individually and together, these conflicts plaguing counsel, 

following from an initial denial of a liberty interest, resulted in a 

conviction and sentencing that cannot withstand constitutional 

scrutiny. 

 Following an initial due-process violation, Kiles never had qualified, 

effective, conflict-free counsel, creating a breakdown in the adversarial process. 

Indeed, for much of the proceedings, counsel and client acted as adversaries while 

the State took sides, advocating for defense counsel and against Kiles’s interests. 

(See, e.g., Tr. Oct. 8, 1999 at 22.) Once the adversarial process between appropriate 

parties breaks down “and loses its character as a confrontation between adversaries, 

the constitutional guarantee [of counsel] is violated.” United States v. Cronic, 466 

U.S. 648, 656–57 (1984). 

 That breakdown throws Kiles’s sentencing into question and negates any 

inference that the myriad unreasonable decisions counsel made cataloged in this 

Petition “were carefully considered.” Bemore v. Chappell, 788 F.3d 1151, 1162 (9th 

Cir. 2015). The myriad of conflicts and violations listed here “are so likely to 

prejudice the accused that the cost of litigating their effect in a particular case is 

unjustified.” Cronic, 466 U.S. at 658. As Kiles’s convictions and sentences were 

 

36 Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice, because of the ineffective assistance of state counsel. See Martinez v. 

Ryan, 566 U.S. 1, 9 (2012); Strickland, 466 U.S. at 688, 694. 

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the products of these Sixth, Eighth, and Fourteenth Amendment violations, Kiles is 

entitled to relief. 

Claim Two 

Counsel’s ineffective assistance in jury selection at the guilt-phase 

proceedings deprived Kiles of his rights to counsel, a fair trial, an 

impartial jury, due process, and equal protection. 

Counsel’s ineffective assistance in guilt-phase jury selection deprived Kiles 

of his rights to counsel, a fair trial, impartial jury, due process, and equal protection 

in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. 

Constitution. Kiles incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition.  

Kiles did not present this claim in state court. Kiles can overcome any default 

by showing cause and prejudice, as the ineffective assistance of Kiles’s state postconviction counsel in failing to raise this claim constitutes cause for the default and 

resulted in prejudice to Kiles. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984). Kiles will demonstrate at an 

evidentiary hearing that state post-conviction counsel fell below the standards of 

minimally competent capital post-conviction attorneys when they failed to raise this 

meritorious claim. Because this claim has not been adjudicated by the Arizona state 

courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this 

Court’s review, and the Court may consider the merits of the claim de novo. 

A. A defendant has a Sixth Amendment right to the effective 

assistance of counsel during voir dire. 

The Sixth Amendment guarantees to a defendant the right to effective 

assistance of counsel, which in turn protects the due-process right to a fair trial. 

Strickland, 466 U.S. at 684; see also Kimmelman v. Morrison, 477 U.S. 365, 374 

(1986) (“The right to counsel is a fundamental right of criminal defendants; it 

assures the fairness, and thus the legitimacy, of our adversary process.”). Under 

Strickland, a defendant was denied effective assistance when (1) the “representation 

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fell below an objective standard of reasonableness,” and (2) “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 687–88, 694. Ultimately, “[t]he 

benchmark for judging any claim of ineffectiveness must be whether counsel’s 

conduct so undermined the proper functioning of the adversarial process that the 

trial cannot be relied on as having produced a just result.” Id. at 686. 

With respect to the first prong of the Strickland test, “[t]he proper measure 

of attorney performance remains simply reasonableness under prevailing 

professional norms.” Id. at 688. The Supreme Court has consistently relied upon 

guidelines from the ABA and similar professional groups to inform the inquiry into 

reasonable professional conduct. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 366–

67 (2010) (“We long have recognized that the ‘[p]revailing norms of practice as 

reflected in American Bar Association standards and the like . . . are guides to 

determining what is reasonable. . . .’” (omissions in original) (quoting Strickland, 

466 U.S. at 688)); see also 1989 ABA Guidelines; 2003 ABA Guidelines. Courts 

have regularly used these and similar guidelines to help determine whether counsel 

performed deficiently. See, e.g., Rompilla v. Beard, 545 U.S. 374, 387 & n.7 (2005) 

(citing the 1982 ABA Criminal Justice Standards for Criminal Justice when 

deeming trial counsel ineffective for their failure to conduct a thorough 

investigation); Wiggins v. Smith, 539 U.S. 510, 524–25 (2003) (“Counsel’s conduct 

similarly fell short of the standards for capital defense work articulated by the 

American Bar Association (ABA)—standards to which we long have referred as 

‘guides to determining what is reasonable.’”) 

With respect to the prejudice prong of the Strickland test, the inquiry is 

whether there is a “reasonable probability” that the jury would have reached a 

different result absent counsel’s errors. Strickland, 466 U.S. at 694. A “reasonable 

probability” is just one “sufficient to undermine confidence in the outcome”—a 

“defendant need not show that counsel’s deficient conduct more likely than not 

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altered the outcome.” Id. at 693–94. 

The effective assistance of counsel is particularly necessary to ensure that a 

defendant’s rights are protected during one of the most critical phases of trial: jury 

selection. “Voir dire plays a critical function in assuring the criminal defendant that 

his [constitutional] right to an impartial jury will be honored. Without an adequate 

voir dire the trial judge’s responsibility to remove prospective jurors who will not 

be able impartially to follow the court’s instructions and evaluate the evidence 

cannot be fulfilled.” Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) 

(plurality opinion). The importance of jury selection is heightened in a capital 

case—jury selection can even be dispositive. See Harris ex rel. Ramseyer v. 

Blodgett, 853 F. Supp. 1239, 1265 (W.D. Wash. 1994); Gary Goodpaster, The Trial 

for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 

299 (1983). Because of the critical nature of jury selection, especially in capital 

cases, counsel’s failure to engage in adequate voir dire can constitute ineffective 

assistance. See Strickland, 466 U.S. at 688, 694; Ybarra v. McDaniel, 656 F.3d 984, 

1001 (9th Cir. 2011) (analyzing claim of ineffective assistance of counsel with 

respect to jury selection). 

As elaborated below, defense counsel performed deficiently in multiple ways 

during jury selection at Kiles’s guilt-phase proceeding, and Kiles was prejudiced as 

a result. Accordingly, counsel were ineffective. See Strickland, 466 U.S. at 688, 

694. 

B. Counsel were deficient in failing to adequately or meaningfully

question prospective jurors to ensure a fair and impartial jury, 

thereby prejudicing Kiles. 

To ensure a fair trial, defendants have a right to have their cases heard “by a 

panel of impartial, indifferent jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) 

(internal quotation marks omitted). Voir dire is a critical tool in ensuring that those 

prospective jurors who cannot fairly assess the evidence and follow the law are 

removed from the jury pool. See Rosales-Lopez, 451 U.S. at 188 (plurality opinion). 

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The 1989 ABA Guidelines list requirements counsel must meet to adequately 

represent a capital defendant during voir dire. See 1989 ABA Guideline 11.7.2. 

These guidelines require capital counsel to familiarize themselves “with the 

precedents relating to questioning and challenging of potential jurors, including the 

procedures surrounding ‘death qualification’ concerning any potential juror’s 

beliefs about the death penalty.” Id. The standards therefore require counsel to ask 

about more than just prospective jurors’ views on the death penalty. It is critical 

counsel learn the juror’s feelings on issues relevant to the case at bar. For example, 

a juror might personally feel that a lesser-included charge is never appropriate if a 

defendant has committed a crime involving children or domestic violence. Effective 

counsel must know of these impairments before they select the jury. In order to 

elicit the information necessary to avoid the selection of biased jurors, counsel must 

use vigorous voir dire to fully explore each prospective juror’s views, knowing well 

ahead the information that both parties will likely present. Here, counsel failed to 

satisfy even the most minimal standards for competent jury selection. 

1. Counsel were deficient in failing to adequately screen 

prospective jurors through questionnaires. 

Prior to Kiles’s trial, prospective jurors were asked to complete a 

questionnaire. (See Tr. July 5, 2000 at 7–8.) The State’s proffered questionnaire 

was entered into the record. (CR89-15577 ROA 169 at 2–10.) Pursuant to a 

stipulation off the record, the questionnaire from the State was submitted to defense 

counsel, who were given the opportunity to submit additional questions before 

sending the questionnaire to the court for approval. The questionnaires provided a 

brief summary of the crime and then asked each prospective juror for limited 

background information, as well as information about views on the death penalty. 

The questionnaires themselves were incomplete, and defense counsel from the start 

should have requested that questions be added to adequately evaluate prospective 

jurors and determine an effective and thorough strategy for voir dire. Counsel 

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should have requested questions on such topics as race, views on drug addiction, 

whether the prospective juror or someone close to that person had been a victim of 

domestic violence, whether the prospective juror had previous knowledge about the 

crime through the media or other means, and whether the death of young children 

in a crime would have an effect. There were also no questions about whether 

prospective jurors had themselves been or knew someone who had been the victim 

of a similar crime. 

Moreover, there were no questions asking prospective jurors about the depth 

of their personal knowledge about Kiles’s case. This was unreasonable in light of 

Kiles’s first trial and conviction; it was even more unreasonable given that defense 

counsel were litigating the extensive coverage of the ongoing 2000 proceedings in 

the local news. (See Tr. Apr. 11, 2000 at 8; DA2 Dkt. 86 at 85–87; Case No. CV00-0143, Pet. For Special Action, May 5, 2000.) 

Though defense counsel were given the opportunity to do so, they failed to 

add any questions or request additional information; the State’s proffered 

questionnaire was given to jurors unaltered. Defense counsel’s failure to solicit 

meaningful information from prospective jurors impaired counsel’s ability to 

conduct voir dire effectively and ensure an impartial jury was empaneled. 

Defense counsel have a duty to question jurors beyond “general inquiries,” 

as such inquiries are inadequate to “detect those jurors with views preventing or 

substantially impairing their duties in accordance with their instructions and oath.” 

Morgan v. Illinois, 504 U.S. 719, 734–735 (1992). Kiles’s counsel were given the 

opportunity to use questionnaires to investigate the ability of prospective jurors to 

be fair and impartial, given the facts and defenses in Kiles’s case, but counsel failed 

to take it. As a result, counsel were unable to make strategic decisions when 

conducting voir dire, in violation of their duty to ensure a fair and impartial duty. 

See id. And, as described below, the failure to elicit critical information led to the 

empaneling of a biased jury. 

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2. Counsel were deficient in failing to question those 

prospective jurors who were biased in favor of the death 

penalty. 

While the Constitution “does not dictate a catechism for voir dire,” it entitles 

a defendant to a voir dire proceeding that is adequate to ensure both that an impartial 

jury is empaneled and that unqualified jurors are identified. Morgan, 504 U.S. at 

729; Dennis v. United States, 339 U.S. 162, 171–72 (1950). To effectuate that right, 

counsel must elicit information that goes to whether a prospective juror is unable to 

be impartial. See Morgan, 504 U.S. at 729; 1989 ABA Guideline 11.7.2. 

Despite the paucity of information elicited by the questionnaires, some of the 

jurors who were ultimately seated gave answers that should have alerted defense 

counsel of their bias in favor of the death penalty. Those jurors had a “substantial[] 

impair[ment]” that required challenges for cause or, at the very least, further 

examination during voir dire. See Morgan, 504 U.S. at 728. Defense counsel failed 

to do either of those things. The failure to ask follow-up questions or to challenge 

prospective jurors for cause, which was the result of lack of diligent preparation and 

investigation, was unreasonable. See Wiggins, 539 U.S. at 521–22 (“[S]trategic 

choices made after less than complete investigation are reasonable precisely to the 

extent that reasonable professional judgments support the limitations on 

investigation.”). 

The questionnaire given to prospective jurors included the following 

question: “Which of the following statements comes closest to your feeling on the 

death penalty?”37 Several prospective jurors indicated that they had strong views in 

favor of the death penalty, by marking either (1) that they were in favor of the death 

 

37 Prospective jurors were given six options. They ranged from being so opposed to 

the death penalty that the juror would not vote guilty for first-degree murder even 

if it were proven beyond a reasonable doubt, to feeling that the death penalty should 

be used in every case when a person knowingly or intentionally takes the life of 

another. The middle-ground option was “I am not opposed to the death penalty, but 

feel it should be used only in special cases.” (CR89-15577 ROA 169 at 8–9.) 

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penalty in every case where the state has proven beyond a reasonable doubt a person 

killed another with premeditation, or (2) that they felt the death penalty should be 

used when a person knowingly or intentionally takes the life of another. Among 

these prospective jurors were nine jurors who were ultimately seated, including 

Jurors L.G., L.W., D.W., B.S., D.M., B.M., A.M., C.A.K., and T.D.38 Even though 

these jurors provided glaring indications of a likely “substantial impairment” under 

Morgan, counsel failed to ask these nine prospective jurors any questions before 

they were seated. (Tr. July 7, 2000 at 75–80, 100–170.) 

One juror, expressed Juror H.D., strong pro-death penalty beliefs and was 

questioned at voir dire before being seated. However, defense counsel did not 

question him on his views on capital punishment. (Tr. July 7, 2000 at 114–16.) Juror 

H.D. was only asked cursorily about his exposure to the case in the media.39 (Tr. 

July 7, 2000 at 114–16.) 

Because the ineffectual voir dire led to the seating of jurors with actual prodeath biases, Kiles was prejudiced. See Ybarra, 656 F.3d at 1001. 

3. Counsel were deficient in failing to question jurors who were 

likely biased due to past personal experiences. 

Counsel also deficiently failed to question or challenge jurors who had a 

“substantial impairment” based on their prior personal experiences, prejudicing 

Kiles. See Morgan, 504 U.S. at 728. 

Two of the empaneled jurors, Jurors L.W. and C.A.K., stated on their 

questionnaires that they had been victims of domestic violence. Neither of these 

jurors were asked any questions at voir dire. (Tr. July 7, 2000 at 75–80, 100–70.) 

This failure was especially egregious given counsel’s guilt-phase strategy, which 

was to contend that Gunnel’s murder was a “heat of passion” crime. Such a defense 

 

38 Voir dire at the guilt phase used last names rather than numbers. 

39 Juror H.D. ultimately served as an alternate juror. (Tr. July 19, 2000 at 99.) 

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invited association with domestic violence. Accordingly, defense counsel should 

have been trying to determine whether prospective jurors—especially those who 

had been victims of domestic violence—would have difficulty being impartial in a 

case involving a female victim who had been killed by her partner. When a 

prospective juror has been the victim of a crime similar to the one at issue, it is 

imperative that counsel question the prospective juror about that experience. If, in 

response, the juror cannot conclusively state that he can be impartial, bias is 

presumed. Cf. United States v. Kechedzian, No. 16-50326, 2018 WL 4200969, at 

*6 (9th Cir. Sept. 4, 2018) (holding where a juror has been a victim of a similar 

crime, the juror must unequivocally state he can be impartial or he must be excused 

for cause). Therefore, Kiles’s counsel should have been particularly diligent in 

questioning jurors who had been involved in or were victims of domestic violence. 

It was unreasonable for defense counsel to not question these jurors about whether 

those experiences impaired their ability to remain impartial. 

Juror C.L.K. wrote on her questionnaire that her maternal great-grandfather 

was murdered, as was her best friend’s father. But defense counsel asked Juror 

C.L.K. no questions about these murders at voir dire. Rather, Clark questioned her 

what she remembered about the instant crime from the media. (Tr. July 7, 2000 at 

134.) Juror C.L.K. remembered that a woman and children had died, that one of the 

children was found in a canal, and that the other was never found. (Tr. July 7, 2000 

at 134.) Clark asked no follow-up questions. (Tr. July 7, 2000 at 75–80, 100–70.) 

Asking Juror C.L.K. solely about her media exposure, when her ability to remain 

indifferent may have been compromised by her close experiences with murder and 

the impact it had on a family, was neither reasoned nor strategic, and counsel were 

deficient for making such a glaring error. See Wiggins, 539 U.S. at 521–22. 

Instead of asking pertinent questions of prospective jurors whose 

questionnaires revealed potential bias, defense counsel failed to inquire whatsoever 

into whether any of the jurors who were ultimately seated were Morgan-impaired. 

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(Tr. July 7, 2000 at 75–80, 100–70.) Defense counsel’s failure to question or to 

meaningfully question those jurors was deficient. Moreover, that failure resulted in 

the seating of several jurors who likely had significant actual biases based on their 

personal experiences. See United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 

2000) (explaining that a court may assume a juror is biased where he “has had some 

personal experience that is similar or identical to the fact pattern at issue in the 

trial”). Because counsel’s deficient voir dire resulted in the seating of a jury that 

was not impartial, counsel were ineffective. See Ybarra, 656 F.3d at 1001. 

Finally, Juror A.B. babysat a little girl who was kidnapped, raped, and 

murdered in 1988. Juror A.B. was close with the family, worked with the little girl’s 

father, and saw how her murder affected him. While not discussed on her 

questionnaire, this experience directly affected the way in which Juror A.B. heard 

the evidence at Kiles’s trial; the testimony of Shemaeah’s father deeply affected 

her, as she had seen another father of a murdered child go through a similar tragedy. 

Having such an experience could have only been prejudicial against Kiles, but no 

appropriate questioning at voir dire was done. Juror A.B. was only asked a few 

questions about whether she had seen anything about Kiles’s case or the crime in 

the media when it occurred. (Tr. July 7, 2000 at 106–07.) She was seated without 

further questioning. Having been close to a victim and family of a similar crime is 

a substantial impairment under Morgan, and adequate defense counsel would not 

have allowed a juror to be seated with such a cursory questioning or investigation 

to uncover such bias. 

That these jurors were seated on Kiles’s jury denied Kiles his right to an 

impartial jury, a fair trial, and a reliable verdict. Defense counsel’s ineffective 

assistance at voir dire resulted in a jury that could not “stand impartial and 

indifferent to the extent commanded by the Sixth Amendment.” Morgan, 504 U.S. 

at 727. 

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4. Counsel were deficient in failing to question prospective 

jurors about their knowledge of Kiles’s previous conviction. 

At capital re-trials or re-sentencings, it is universally acknowledged as 

extremely damaging and prejudicial to inform the new jury of the prior death 

sentence or to make repeated references to the fact that defendant has been 

previously convicted and on death row. See, e.g., Fullwood v. Lee, 290 F.3d 663, 

682–83 (4th Cir. 2002) (remanding for hearing to determine whether jurors were 

exposed to information about prior death sentence because “generally speaking, 

such information is prejudicial in nature”); Atkins v. Commonwealth, 631 S.E.2d 

93, 100 (Va. 2006) (reversing death sentence reached at resentencing because the 

jury was made aware of prior death sentence); People v. Woolley, 793 N.E.2d 519, 

524 (Ill. 2002) (reversing death sentence because “[t]he fact that the jurors heard 

that another jury sentenced defendant to death could have mitigated the serious 

consequences of their decision”); Hammond v. State, 776 So.2d 884, 889 (Ala. 

Crim. App. 1998) (holding that the prosecutor “committed reversible error when he 

informed the jury that Hammond had previously been sentenced to death for the 

same offense at a previous trial”); State v. Miller, 771 S.W.2d 401, 404 (Tenn. 1989) 

(“[I]t is clearly improper, as a general rule, to inform a jury at a resentencing hearing 

that at a prior trial defendant was sentenced to death.”); State v. Britt, 220 S.E.2d 

283, 292 (N.C. 1975) (“[N]o instruction by the court could have removed from the 

minds of the jurors the prejudicial effect that flowed from knowledge of the fact 

that defendant had been on death row as a result of his prior conviction of first 

degree murder in this very case.”). For this reason, competent capital counsel should 

have questioned jurors individually as to whether they had personal knowledge of 

the crime or defendant prior to their being called to serve. Kiles’s counsel failed to 

add any germane questions to the questionnaire; counsel again failed by not asking 

jurors questions during voir dire that would have flagged jurors with potentially 

damaging knowledge of Kiles’s prior proceedings. (Tr. July 7, 2000 at 75–80, 100–

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70.) Given the risks associated with a seated juror having knowledge of Kiles’s 

prior convictions and death sentences, counsel’s failure to address this topic even 

obliquely was deficient. See Strickland, 466 U.S. at 688. 

At least one juror was aware at the time he was seated on the jury that Kiles 

had been convicted at a prior trial and that the jury was not supposed to know that 

fact. The juror was uncertain whether he was supposed to alert counsel or the judge 

about his knowledge of the case. Because the juror was not questioned on the 

matter, he assumed it was of no consequence. That this juror was seated without 

any questioning is evidence enough of ineffective assistance. However, the failure 

by counsel to uncover his knowledge of Kiles’s prior conviction was prejudicial to 

Kiles. See, e.g., Fullwood, 290 F.3d at 682–83 (holding that jurors’ exposure to 

information about prior death sentence is “prejudicial in nature”). 

5. Counsel were deficient in failing to meaningfully question 

jurors about their exposure to Kiles’s case in the media. 

Kiles’s guilt-phase voir dire was completely unproductive. Counsel did not 

ask any individual questions of eleven people who were selected for Kiles’s jury: 

Jurors E.B., T.D., C.A.K., A.M., B.M., D.M., B.S., L.W., D.W., L.G., and C.M. 

Jurors L.G. and C.M. were alternates. (Tr. July 7, 2000 at 75–80, 100–70; ROA 

479.) 

This was especially unreasonable, as defense counsel were well aware of the 

extensive coverage in local news of the crime, the criminal proceedings, and Kiles’s 

prior convictions and sentences. To combat bias from media exposure, the defense 

filed a petition for special action with the Arizona Supreme Court for a change of 

venue. The petition detailed how pervasive news coverage was in Yuma regarding 

Kiles’s case. (Case No. CV-00-0143, Pet. For Special Action, May 5, 2000 at 4–

46.) The defense further argued against a motion by the Yuma Sun, a prominent 

local newspaper, to print information about Kiles’s former trial and conviction; the 

Yuma Sun was given permission to print the information. (ROA 491 at 3–8; Tr. 

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July 7, 2000 at 9–14.) On another occasion, defense counsel told the court, “It is 

apparent, based upon my investigation of the pleadings, when they’re filed with the 

court that the press is—they come and get them almost the next day, if not the very 

same day, and then they’re reported in the press.” (Tr. Apr. 11, 2000 at 8.) Defense 

counsel knew exactly how widespread the media coverage of the case was. Yet 

counsel still failed to ask a single question of the majority of jurors who were seated 

on Kiles’s jury. This failure was simply unreasonable. 

Given the objective importance of capital jury selection, the legal precedent 

and established professional norms require counsel to question prospective jurors 

on their knowledge of a prior capital sentence when a case is being retried, as well 

as their potential biases or inability to fairly consider the evidence before them. 

Kiles’s counsel permitted 11 of 16 jurors to be selected without asking any

questions. Kiles’s counsel’s failure to ask even one question of these jurors to assess 

whether they were substantially impaired constitutes deficient performance. See 

Morgan, 504 U.S. at 728; Virgil v. Dretke, 446 F.3d 598, 613 (5th Cir. 2006) 

(counsel must make reasonable efforts “to explore the depth or intensity” of 

potentially disqualifying views among the venire). 

Kiles’s counsel’s failure to ask any questions of most of the seated jurors, 

and failure to adequately question other seated jurors, resulted in multiple people 

on Kiles’s jury who should have been disqualified for cause because their ability to 

consider all the evidence or be free of biases was substantially impaired. See 

Ybarra, 656 F.3d at 1001. Such a jury was unconstitutional, as “due process alone 

has long demanded that, if a jury is to be provided the defendant, regardless of 

whether the Sixth Amendment requires it, the jury must stand impartial and 

indifferent to the extent commanded by the Sixth Amendment.” Morgan, 504 U.S. 

at 727. 

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C. Counsel failed to challenge the denial of a fair cross-section of the 

community in the venire. 

A venire comprised of “a representative cross section of the community is an 

essential component of the Sixth Amendment right to a jury trial.” Taylor v. 

Louisiana, 419 U.S. 522, 528 (1975). It is unconstitutional where a “distinctive” 

group is not fairly represented due to systematic exclusion, without a significant 

state interest justifying it. Duren v. Missouri, 439 U.S. 357 (1979); Taylor, 419 U.S. 

at 533–35. The under-representation need not be intentional or a product of bad 

faith. Glasser v. United States, 315 U.S. 60, 86 (1942).

Counsel’s failure to object to the fair cross-section violation in Kiles’s case 

was deficient, as Taylor long pre-dated Kiles’s 2000 guilt phase. See 1989 ABA 

Guideline 11.7.2(A) (requiring counsel to consider challenges to the venire panel). 

Kiles’s guilt-phase jury was chosen through a selection process that involved 

excessive unsupervised discretion and that was therefore susceptible to abuse. The 

Jury Commissioner for the County of Yuma mailed questionnaires to prospective 

jurors who were selected from voter registration lists. (ROA 225 at 5; ROA 225 Ex. 

55 at 1.) If the questionnaire was returned due to a bad address, there was no follow 

up or attempt to locate these individuals. (ROA 225 at 5; ROA 225 Ex. 55 at 1.) 

The Jury Commissioner eliminated prospective jurors based on the returned 

questionnaires at the Jury Commissioner’s sole discretion. (ROA 225 at 5; ROA 

225 Ex. 55 at 1–2.) These questionnaires were then destroyed, without any 

possibility for review by litigants or judicial officers. (ROA 225 at 5; ROA 225 Ex. 

63 at 2.) Therefore, there is no way to ensure that the venire represented a fair crosssection of the community. 

Compounding the failure to challenge the flawed method above, trial counsel 

failed to seek information about race on the questionnaires (CR89-15577 ROA 169 

at 4–11) provided to jurors. It is unknown if the defense took contemporaneous 

notes on prospective jurors or if they took an accounting of race of the prospective 

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juror pool.40 Counsel’s failure to investigate or object to the lack of a fair crosssection was deficient. See Taylor, 419 U.S. at 533–35; 1989 ABA Guideline 

11.7.2(A). 

Kiles was prejudiced by his counsel’s failure to investigate or object, as the 

failure to do so deprived Kiles of a fair trial. Strickland, 466 U.S. at 687. Jury 

selection from a venire that violates the fair cross-section guarantee is structural 

error. United States v. Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005), overruled 

on other grounds by United States v. Hernandez-Estrada, 749 F.3d 1154 (9th Cir. 

2014). Here, had counsel objected to the denial of the fair cross-section, “there is a 

reasonable probability that the claim [counsel] failed to raise at trial would have 

prevailed, either at trial or on appeal.” Doe v. Ayers, 782 F.3d 425, 432 (9th Cir. 

2015) (citing Strickland, 466 U.S. at 694). Kiles was therefore prejudiced by his 

counsel’s deficient performance. 

D. Counsel failed to make a record as to the reasons underlying the 

removal of many prospective jurors. 

Finally, counsel failed to make a complete record regarding jury selection, 

compromising Kiles’s right to meaningful appellate review. See Gregg v. Georgia, 

428 U.S. 153, 195 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); 

Dobbs v. Zant, 506 U.S. 357, 358 (1993) (“We have emphasized before the 

importance of reviewing capital sentences on a complete record.”). Counsel’s 

failure was deficient and prejudiced Kiles. See Strickland, 466 U.S. at 688, 694; see 

also Claim 16, infra. 

Kiles’s counsel and the State stipulated to the removal of a vast majority of 

prospective jurors, without providing any reason for their removal on the record. 

After reviewing the questionnaires, but without engaging in any voir dire of these 

 

40 Defense counsel failed to preserve the 2000 guilt-phase proceeding juror 

questionnaires. This was part of a pattern of failing to create a record. See Claim 

16, infra. 

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prospective jurors, trial counsel and the State stipulated that 41 prospective jurors 

should be excused. (ROA 456.) The record of jury selection does not reflect the fact 

of these prospective jurors’ removal, let alone the reasons underlying removal. (See 

Tr. July 7, 2000 at 19–28.) Thus, the record on appeal lacked critical information 

necessary for Kiles’s appellate lawyer to challenge his convictions, prejudicing 

Kiles. The failure to make a complete record constituted ineffective assistance by 

Kiles’s counsel. See Claim 16, infra. 

In capital cases, “certain inquiries must be made to effectuate constitutional 

protections.” Morgan, 504 U.S. at 730. In Kiles’s case, however, counsel’s voir dire 

performance did not satisfy objective standards of capital representation. The 

standards were developed to ensure capital counsel’s performance adhered to 

prevailing Supreme Court law, and at the time of retrial, counsel were obligated to 

know and follow these standards. See 1989 ABA Guideline 11.7.2. Reasonably 

competent capital attorneys would have worked to uncover jurors’ biases justifying 

their removal for cause, as well as information that would have enabled counsel to 

make informed peremptory strikes. Competent counsel would have rehabilitated 

prospective jurors rather than release them by stipulation and would have ensured 

a complete record. The failure of Kiles’s counsel to do so undermined his right to 

an impartial jury, and therefore to a fair trial, such that Kiles is entitled to relief. 

Claim Three 

Kiles was denied effective assistance of counsel at his guilt-phase 

proceedings because counsel failed to investigate, develop, and

present critical evidence, among other significant errors. 

Kiles’s trial counsel failed to investigate and prepare adequately for the guilt 

phase of trial and consequently neglected to develop and present Kiles’s only viable 

defense to first-degree murder for the death of Valerie Gunnel. Counsel’s deficient 

performance in that respect and others, both individually and cumulatively, 

prejudiced Kiles and thereby violated his rights under the Sixth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

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facts, allegations, and arguments made elsewhere in this Petition. Kiles presented 

this claim below. (ROA 1189 at 23–25, 30–40, 42–46; PFR2 Dkt. 1 at 23–46.) 

A. Background on guilt-phase proceedings. 

 The trial commenced on July 10, 2000, with prosecutor David Powell’s 

opening statement. Powell offered the jury a brief overview of the State’s theory of 

the crime: Late on February 9, 1989, Kiles returned home to Gunnel’s apartment, 

where he and Gunnel argued over food stamps that he had taken from her. (Tr. July 

10, 2000 at 12–13.) She slapped him twice, after which he went to his car, returned 

with a tire jack, and began beating her. (Tr. July 10, 2000 at 12–13.) Powell 

contended that the assault began in the east bedroom and continued into the living 

room, where Gunnel eventually died. (Tr. July 10, 2000 at 13.) According to 

Powell, Kiles then went into the west bedroom, where “the carnage continued” as 

Kiles beat both of Gunnel’s children, Shemaeah and LeCresha, to death. (Tr. July 

10, 2000 at 13.) He later disposed of the children’s bodies in the river. (Tr. July 10, 

2000 at 13.) 

 Powell laid out for the jury the three types of witnesses the State planned to 

present. First, the State would offer the testimony of several witnesses who would 

help lay the scene for what occurred on the day of the crime and until Kiles’s arrest. 

(Tr. July 10, 2000 at 14–15.) Second, the State would present several “scientific 

witnesses.” (Tr. July 10, 2000 at 16.) Powell overstated what these experts could 

attest to, claiming for example that, through DNA evidence, the State would explain 

“the chronology of what happened inside that apartment.” (Tr. July 10, 2000 at 16–

17.) Powell similarly insisted that blood-spatter expert Tom Bevel would be able to 

“explain exactly what happened,” including that “there were a minimum of 14 

blows struck” in the west bedroom. (Tr. July 10, 2000 at 19–20.) In addition, the 

State would use the DNA expert and a statistician to establish that Shemaeah had 

been killed, even though her body had not been found, and would present the 

testimony of R.B. Mallon, M.D., who conducted the autopsies. (Tr. July 10, 2000 

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at 18–20.) Lastly, the State would call witnesses who could speak to Kiles’s 

statements in the wake of the killings. (Tr. July 10, 2000 at 21.) One such witness 

would be Kiles’s mother; Powell asserted that she would testify that Kiles said, 

“point blank, ‘I killed Valerie and the kids.’” (Tr. July 10, 2000 at 21.) 

 Lead defense counsel Greg Clark had three focal points during his opening. 

First, despite Powell’s misrepresentations, Clark extolled the scientific evidence in 

this case, hammering home for the jury that it was incontrovertible. Clark informed 

the jury that “Mr. Powell [wa]s absolutely correct with regard to the blood spatter 

evidence.” (Tr. July 10, 2000 at 34.) The field was “a very scientific area”; further, 

“[y]ou can’t fight the DNA. You can’t. You can’t find [sic] that blood spatter 

because that is a forensic fact in this case.” (Tr. July 10, 2000 at 34–35.) In that 

same vein, Clark confirmed for the jury, “I can tell you now that the physical 

evidence, that scientific evidence doesn’t lie. It’s not going to lie and it’s never lied. 

It is what it is.” (Tr. July 10, 2000 at 41.) 

 Second, Clark laid out the defense’s theory of the case. Clark made clear 

from the outset that Kiles was “absolutely responsible for the death of Valerie 

Gunnel. That is not [the] issue.” (Tr. July 10, 2000 at 39–40.) What was at issue, 

however, was Kiles’s degree of culpability for the death, which Clark noted 

occurred “during the heat of the passion, a heated, ugly fight.” (Tr. July 10, 2000 at 

40.) With respect to the children’s deaths, Kiles “didn’t act alone.” (Tr. July 10, 

2000 at 40.) 

 Third, Clark previewed for the jury Kiles’s anticipated testimony. Clark 

explained that Gunnel and Kiles had used drugs together on February 9, 1989, to 

celebrate his new job, until Kiles eventually used Gunnel’s food stamps to buy 

drugs and use them with friends. (Tr. July 10, 2000 at 42–43.) When he went home 

with his friends to “face the music,” Gunnel started an argument because Kiles had 

returned without the drugs he had promised. (Tr. July 10, 2000 at 44–45.) Clark 

noted Kiles had had “a little bit to drink, he’s had a lot of drugs,” and “[h]e [was] 

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not having any of it.” (Tr. July 10, 2000 at 44.) He started preparing to leave, but 

the argument escalated when Gunnel slapped Kiles twice. (Tr. July 10, 2000 at 45.) 

At that point, he reached down, grabbed the tire jack by his side, and hit her. (Tr. 

July 10, 2000 at 45–46.) After the shock lessened, Kiles went to look for his friends; 

he found them in the bedroom and saw that they had killed the children. (Tr. July 

10, 2000 at 46.) Kiles tried to clean the apartment while his friends left to dispose 

of the children’s bodies. (Tr. July 10, 2000 at 47–48.) Later, because he still “wants 

to get high,” Kiles tried to sell some of Gunnel’s property in order to get money for 

more drugs. (Tr. July 10, 2000 at 49.) 

 As Powell had pledged, the State did offer three types of witnesses over the 

course of six days of testimony. Through several witnesses, the State tried to 

develop a timeline of events starting on February 9, 1989. (See, e.g., Tr. July 12, 

2000 at 6–9, 11–13 (Gunnel’s sister giving overview of when she saw Gunnel on 

February 9, 1989); Tr. July 12, 2000 at 42–43 (Shemaeah’s father testifying about 

when he saw Gunnel and Shemaeah on that day).) Several Yuma Police Department 

officers, including lead investigator Detective Brian Rodgers, detailed the crime 

scene and aspects of the investigation. (See, e.g., Tr. July 11, 2000 at 143–44 

(Rodgers describing crime scene at Gunnel’s apartment).) Defense counsel 

concentrated on asserting that Kale Johnson was responsible for the deaths of the 

children, so counsel focused their cross-examinations on undercutting the 

credibility of these witnesses, especially those who suggested that Johnson was not 

involved in the crime. (See, e.g., Tr. July 12, 2000 at 158–61, 168–69, 172–83 

(defense counsel trying to impeach credibility of Deirdre Johnson, who had 

suggested that Kale Johnson had not seen Kiles on the morning of February 10, 

1989).) Defense counsel further elicited testimony on cross-examination regarding 

forensic evidence, including Kale Johnson’s shoeprints at Gunnel’s apartment and 

blood on Johnson’s clothing, tying Johnson to the crime scene. (See, e.g., July 17, 

2000 at 74–76 (Rodgers testifying that Converse prints appearing to match 

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Johnson’s shoes were found in the hallway and back patio area of Gunnel’s 

apartment); July 17, 2000 at 83–84 (Rodgers testifying that Gunnel’s blood was 

found on Johnson’s shoes and pants).) Little, if anything, of relevance to how 

Gunnel’s death unfolded emerged. 

 The State then presented the testimony of four experts.41 First, DNA analyst 

David Duplissa informed the jury that he had analyzed 11 items from the crime 

scene for DNA profiles and had compared those profiles to five known standards, 

including those of Gunnel, Kiles, and Kale Johnson. (Tr. July 12, 2000 at 114–17.) 

Among the items that had blood with Gunnel’s DNA profile were a tire jack ratchet, 

a shoe, and a swab from the living room door. (Tr. July 12, 2000 at 122–23.) Kiles’s 

trial counsel, seeking to bolster their third-party defense, drew out on crossexamination that one of Johnson’s Converse shoes and his pants had Gunnel’s 

blood on them, as well as that the blood on Johnson’s jacket had a DNA profile 

from an unidentified individual. (Tr. July 12, 2000 at 132–38.) 

The State next sought to establish the fact of Shemaeah’s death through 

Thomas Wiltbank, M.D., who testified that it was “extremely likely” that the blood 

on the bedsheet submitted for testing was from an offspring of Gunnel and Ward 

Wade, namely Shemaeah. (Tr. July 13, 2000 at 87, 92.) The defense asked no 

questions of Dr. Wiltbank. 

 Third, the State called the pathologist, Dr. Mallon, who had conducted the 

autopsies of Gunnel and LeCresha Kirklin. Dr. Mallon identified the primary cause 

of death of both victims as blunt trauma to the head. (Tr. July 13, 2000 at 97, 101.) 

He further defined the term “defensive wound” and indicated that he saw evidence 

of such a wound with Gunnel’s broken arm. (Tr. July 13, 2000 at 99.) On crossexamination, defense counsel made a particular point of getting Dr. Mallon to agree 

that this defensive wound must have occurred when Gunnel was conscious, 

 

41 The State also presented Rodgers as a crime-scene management expert. (ROA 

446 at 2.) 

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meaning that it must have occurred early on during the beating. (Tr. July 13, 2000 

at 105.) 

 Fourth, blood-spatter expert and crime-scene reconstructionist Tom Bevel 

testified on behalf of the State. He declared that blood-stain analysis can provide 

“in essence, a reconstruction of the occurrences that might have taken place in order 

to produce the blood as it is found.” (Tr. July 14, 2000 at 8–9.) From his photographbased analysis of the west bedroom, where the children were killed, Bevel testified 

that there had been a minimum of 14 blows and that the attacker was right-handed. 

(Tr. July 14, 2000 at 15, 19, 27.) On cross-examination, the defense once again 

focused on its third-party defense and had Bevel discuss what the implications 

would be (in terms of who was swinging the weapon) if the blood on Johnson’s 

jacket were castoff or spatter. (Tr. July 14, 2000 at 37–39.) Bevel also testified that 

for a shoeprint to be made in blood, that blood still has to be in a liquid state; he 

was unable to identify any clotting in the photographs of the bloody Converse 

shoeprints in Gunnel’s apartment, suggesting that the blood was “[f]resher” when 

the Converse shoe was placed in it. (Tr. July 14, 2000 at 40–44.) Bevel 

acknowledged that a compromised crime scene—one that has changed since the 

crime—can limit what blood-stain evidence can say about the crime. (Tr. July 14, 

2000 at 47–48.) Defense counsel’s cross-examination focused nearly exclusively 

on information relating to the children’s deaths, not to Gunnel’s. (See Tr. July 14, 

2000 at 30–50, 55–59.) 

 Lastly, the State called Imojean Kiles, Jesse Solomon, Larry Hawkins, and 

Kale Johnson to testify about the admissions Kiles made to them. The State’s 

purpose was to establish that Kiles had repeatedly confided to family and close 

friends that he had killed Gunnel and her children and had disposed of the children’s 

bodies, and moreover that he had not implicated Johnson in the crimes. (See, e.g., 

Tr. July 13, 2000 at 12–13.) The State further elicited testimony from Hawkins 

about what he claimed to have learned from Kiles, including that (1) the assault 

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began after Gunnel slapped Kiles, “enrag[ing] him,” (2) Kiles went outside to get 

the tire jack from the car and then returned and struck Gunnel, and (3) Gunnel 

regained consciousness at one point during the attack, after which Kiles beat her 

again until she died. (Tr. July 13, 2000 at 23–24, 28–29, 32–33.) 

For all of these witnesses, the defense focused heavily on undercutting any 

suggestion that Kiles had admitted to killing the children or disposing of their 

bodies. (See, e.g., Tr. July 11, 2000 at 79 (Imojean Kiles testified that she 

understood from Johnson that he had been involved in the killings); Tr. July 13, 

2000 at 57–58 (defense getting Hawkins to admit that some of the information he 

gave to police must have been based on news sources, not just information from 

Kiles).) During the cross-examination of Johnson and other testimony about 

Johnson, the defense determinedly sought to highlight inconsistencies in his prior 

statements, his inadequate explanation for Gunnel’s blood on his clothing, the fact 

that he spent much of the day after the killings with Kiles, and the fact that he was 

spared murder charges once he named Kiles as the sole culprit in the killings. (See, 

e.g., Tr. July 14, 2000 at 113–15 (Johnson indicating he signed affidavit stating he 

would have been indicted for murder if he did not testify); Tr. July 14, 2000 at 129 

(Johnson dismissing the blood spots on his clothing as having gotten there “some 

type of way” when he was in Gunnel’s apartment); Tr. July 17, 2000 at 89 (Rodgers 

admitting that Johnson “didn’t have an explanation for the [blood on his] jacket”).) 

Once again, the defense focused on Johnson’s involvement and paid little heed to 

Gunnel’s death. 

 The centerpiece of the defense case was Kiles’s testimony. After briefly 

presenting only three other witnesses (see Tr. July 17, 2000 at 127, 138, 145), the 

defense called Kiles to the stand. Kiles set out in detail his relationship with Gunnel, 

that he had just gotten a job the morning of February 9, 1989, and how he and 

Gunnel planned to sell her food stamps for drugs so they could celebrate. (Tr. July 

17, 2000 at 153–55.) Kiles walked the jury through much of the day in question, 

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including his drinking and drug use with Johnson and others in the afternoon. (Tr. 

July 17, 2000 at 157–58.) Kiles further testified that he and his friends, including 

Johnson and one Mike Parker, used all of the drugs and the money—such that they 

had to return to Gunnel’s apartment with no food stamps, no money, and no drugs. 

(Tr. July 17, 2000 at 158–60.) 

Kiles continued that Gunnel started arguing with him because he had come 

back empty-handed, so he and his friends started packing his stuff to move out. (Tr. 

July 17, 2000 at 160.) To make room in his car for his belongings, which included 

a television, clothes, and a bed, Kiles had to move some of the items in his car—

including a tire jack—into the apartment. (Tr. July 17, 2000 at 160–62.) But Gunnel 

was still arguing with him, and things got “so heated.” (Tr. July 17, 2000 at 164.) 

Kiles testified, “She slapped me. I asked her not to do that. Well, I told her, Don’t 

slap me again. More words was exchanged and she slapped me again.” (Tr. July 17, 

2000 at 165.) Then Kiles “just reached down and grabbed the jack and just swung 

it.” (Tr. July 17, 2000 at 165.) Gunnel, who had been facing Kiles, fell into a leather 

chair; Kiles continued, “I guess I hit her more than one time.” (Tr. July 17, 2000 at 

165–66.) Kiles explained that Gunnel went down quickly: once he hit her, “[s]he 

didn’t move again.” (Tr. July 17, 2000 at 166.) She did not regain consciousness or 

speak again. (Tr. July 17, 2000 at 166.) He went into shock and dropped the tire 

jack; it was only once a noise roused him that he went to the west bedroom, where 

he saw Johnson swinging the tire jack at the children and Parker watching from 

nearby. (Tr. July 17, 2000 at 167–70.) 

Afterward, Parker, Johnson, and Kiles devised a plan: Parker and Johnson 

would dispose of the children’s bodies, while Kiles tried to clean the apartment. 

(Tr. July 17, 2000 at 170–73.) As part of the attempted clean-up, Kiles wrapped 

Gunnel’s body in a blanket and moved her from the chair into the hallway, out of 

sight from the apartment’s front door. (Tr. July 17, 2000 at 171.) Kiles testified that 

he later passed out; afterward, he and Johnson ransacked Gunnel’s apartment for 

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property they could sell in order to feed their addictions. (Tr. July 17, 2000 at 177, 

190.) 

On cross-examination, Kiles testified that anyone who said that he had killed 

all three victims was wrong—that Johnson was lying. (Tr. July 17, 2000 at 215.) 

Powell’s closing argument for the State emphasized just how much time 

Kiles had, according to the State’s version of events, to think about what he was 

doing. (Tr. July 19, 2000 at 36.) Powell announced, “The state maintains to you, 

ladies and gentlemen, never has a case exhibited more premeditation than the one 

we exhibit now.” (Tr. July 19, 2000 at 36–37.) Powell further shared that he 

personally did not credit Kiles’s testimony that Johnson had killed the children. (Tr. 

July 19, 2000 at 30.) During closing argument, with regard to Gunnel’s death, 

defense counsel countered that the State’s theory that the attack on Gunnel started 

in the bedroom was untenable. (Tr. July 19, 2000 at 51.) Lauding Bevel as “the 

foremost expert” in blood-stain analysis, Clark noted that some of Bevel’s 

testimony corroborated Kiles’s statement that he did not kill the children. (Tr. July 

19, 2000 at 57.) Clark also told the jury that it could consider intoxication when 

assessing whether the killings were premeditated. (Tr. July 19, 2000 at 70–71.) 

With respect to Gunnel’s death, the court instructed the jury on premeditated 

first-degree murder, second-degree murder, heat-of-passion manslaughter, and 

reckless manslaughter. The court also provided additional instructions for the 

counts regarding Shemaeah and LeCresha. (Tr. July 19, 2000 at 86–99.) After what 

appears to have been more than a full day of deliberations, the jury returned verdicts 

of guilty as to three counts of first-degree murder and two counts of child abuse. 

(See ROA 479 at 1; CR89-15577 ROA 217 at 1.)

B. A defendant has a Sixth Amendment right to the effective 

assistance of counsel at guilt-phase proceedings. 

As described in Claim 2, supra, the Sixth Amendment guarantees to a 

defendant the right to effective assistance of counsel. Strickland v. Washington, 466 

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U.S. 668, 684 (1984). Under Strickland, a defendant is denied effective assistance 

when (1) the “representation fell below an objective standard of reasonableness,” 

and (2) “there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 466 U.S. at 687–88, 

694. 

Whether an attorney performed deficiently depends on the “reasonableness 

[of the attorney’s actions] under prevailing professional norms.” Id. at 688. As 

noted previously, the Supreme Court has consistently relied upon guidelines from 

the ABA and similar professional groups to inform the inquiry into reasonable 

professional conduct. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 366–67 (2010); 

Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam); Rompilla v. Beard, 545 U.S. 

374, 387 & n.7 (2005); see also 1989 ABA Guidelines; 2003 ABA Guidelines. 

While strategic choices made by trial counsel are presumed reasonable, that 

deference applies only insofar as the choices resulted from “thorough investigation 

of law and facts relevant to plausible options[.]” Strickland, 466 U.S. at 689–90. 

“[S]trategic choices made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgments support the 

limitations on investigation. In other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521–22 (2003). 

Notably, whether an attorney performed reasonably takes into account the 

attorney’s professional history: the “character of a particular lawyer’s experience 

may shed light in an evaluation of his actual performance.” United States v. Cronic, 

466 U.S. 648, 665 (1984); see supra, Claim 1 (discussing some of trial counsel’s 

relevant history). 

Whether an attorney’s deficient performance caused prejudice depends on 

whether there is a “reasonable probability” that the jury would have reached a 

different result absent counsel’s errors. Cronic, 466 U.S. at 694. A “reasonable 

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probability” is just one “sufficient to undermine confidence in the outcome”—a 

“defendant need not show that counsel’s deficient conduct more likely than not 

altered the outcome.” Id. at 693. Further, because of the requirement of unanimity, 

prejudice turns on whether there is a reasonable probability that even one juror 

would have made a different decision. Wiggins, 539 U.S. at 537. 

When evaluating prejudice, a court must consider “the totality of the 

evidence—both that adduced at trial, and the evidence adduced in the habeas 

proceeding[s].” Id. at 536 (alteration in original) (quoting Williams v. Taylor, 529 

U.S. 362, 397–98 (2000)). And, critically, the question is not only whether each 

instance of deficient performance was on its own prejudicial, but also whether the 

combined effect of all of those instances was to undermine confidence in the 

outcome. See Strickland, 466 U.S. at 694; see also, e.g., Martin v. Grosshans, 424 

F.3d 588, 592 (7th Cir. 2005) (“[E]ven if these [unprofessional] errors, in isolation, 

were not sufficiently prejudicial, their cumulative effect prejudiced Martin’s 

defense.”). 

C. Trial counsel were ineffective for failing because of their 

constitutionally inadequate investigation to present a reasonable 

defense for the death of Gunnel. 

One of the primary duties of trial counsel is to conduct a reasonable 

investigation. See Kimmelman, 477 U.S. at 384 (concluding that the adversarial 

process “will not function properly unless defense counsel has done some 

investigation into the prosecution’s case and in to various defense strategies”). 

Counsel must “conduct a prompt investigation of the circumstances of the case and 

. . . explore all avenues leading to facts relevant to the merits of the case.” Doe v. 

Ayers, 782 F.3d 425, 434 (9th Cir. 2015) (alteration and internal quotation marks 

omitted). Then, once counsel has conducted a reasonable investigation, counsel 

may make strategic decisions based upon the information gathered—including the 

decision to curtail further investigation. Simply put, investigation must precede and 

inform strategy. See Wiggins, 539 U.S. at 521–22. Counsel’s decisions warrant 

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deference only when those decisions follow a “thorough investigation of law and 

facts relevant to plausible options[.]” Strickland, 466 at 689–90. Such is not the 

case when counsel (1) adopts a strategy after an inadequate investigation, and then 

(2) limits further investigation based on that ill-conceived strategy. See Wiggins, 

539 U.S. at 521–22; Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017) 

(“[C]ounsel could not have reasonably concluded that obtaining a psychological 

examination would conflict with his trial strategy without first knowing what such 

an examination would reveal.”). 

Trial counsel failed to adequately investigate the law and facts related to 

Kiles’s guilt-phase proceedings, especially as they related to the charge of firstdegree murder with premeditation for the death of Gunnel. Instead of conducting a 

reasonable investigation and then developing a strategy for the defense, counsel 

conducted an extremely limited investigation, settled on a strategy, and then tailored 

subsequent investigative and other decisions to fit with that predetermined and 

unsupportable strategy. As described below, had counsel conducted a reasonable 

investigation and then determined trial strategy, taking into account expert 

consultations, witness interviews, and the like, counsel would have been able to 

present a reasonable defense and undercut the State’s case, such that there is a 

reasonable probability that at least one juror would have concluded that Kiles was 

guilty of second-degree murder, not first-degree murder, in Gunnel’s death. 

1. Trial counsel performed deficiently by failing to conduct a 

reasonable investigation; that performance resulted in them 

settling on a legally unsound and ill-considered guilt-phase 

strategy. 

From the outset, lead counsel Greg Clark had a wealth of information on 

valuable avenues of investigation for Kiles’s guilt-phase proceedings. Indeed, Kiles 

had previously been convicted of all three counts of first-degree murder, and first 

state post-conviction counsel had obtained relief from those convictions based on 

ineffective assistance both of trial counsel in preparing and presenting a defense 

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and of appellate counsel. (See CR89-15577 ROA 60 at 3–4.) 

First, state post-conviction counsel had alleged that Kiles’s 1989 trial counsel 

performed deficiently in numerous respects, including by (1) failing to request the 

appointment of experts to evaluate blood spatter and other forensic evidence, and 

(2) failing to investigate and present evidence that Kiles could not and did not 

premeditate murder because of his intoxication and impulsivity. (ROA 225 at 37–

41, 66.) Counsel attached to their petition over 80 exhibits, including an affidavit 

from expert criminalist Peter Barnett critiquing the work of Tom Bevel, the State’s 

blood-spatter expert (see ROA 225 Ex. 59; ROA 225 Ex. 79), and an affidavit from 

psychiatrist and neurologist Albert Globus, M.D., discussing such topics as Kiles’s 

dysfunctional family, childhood trauma, struggles with addiction, and impulsivity 

(ROA 225 Ex. 60.) At the subsequent state post-conviction hearing in 1996, Dr. 

Globus testified extensively about Kiles’s impulsivity, which Dr. Globus concluded 

was likely attributable to in utero toxic exposure and aggravated by chronic 

depression and intoxication. (See, e.g., Tr. Feb. 21, 1996 at 177–78.) Dr. Globus 

further described how organic brain damage and genetic predisposition contributed 

to Kiles’s addictions and how Kiles’s “toxic psychosis from the drugs” led to 

“severely disordered” thought processes at the time of the offense. (See, e.g., Tr. 

Feb. 21, 1996 at 177–85.) Persuaded by such testimony, the state post-conviction 

court granted relief in 1996. (See CR89-15577 ROA 60.) 

Competent subsequent trial counsel would have regarded prior counsel’s 

extensive investigation as a resource and would have reviewed it carefully. Clark, 

however, did not do so. See Rompilla, 545 U.S. at 383–84 (counsel performed 

deficiently when they were on notice that a readily available file had relevant, 

helpful information but failed to review it). After Clark’s appointment as lead 

counsel in September 1998 (see Tr. Oct. 7, 1998 at 2–4), Clark moved for funding 

for an investigator and for a mental-health expert (ROA 384 at 1–2). At a hearing 

on that motion, Clark indicated that the mental-health expert would conduct “just, 

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I think, probably a pre-screen type examination.” (Tr. Oct. 30, 1998 at 45–46.) 

Clark further specified that the court should appoint Dr. Globus, noting that “[i]t 

appears this gentleman has had some contact with Mr. Kiles. . . . [Dr. Globus] was 

somebody, I think, [who was] referenced in the appellate procedure, judge. Possibly 

a PCR.” (Tr. Oct. 30, 1998 at 45–46.) Clark had no idea that Dr. Globus had testified 

at the post-conviction hearing, let alone the substance of that testimony. 

 The court42 granted Clark’s request for funding for an investigator and for 

Dr. Globus’s pre-screening examination. (ROA 386 at 1); see also ABA Guideline 

8.1 cmt. (recognizing the importance of trained investigators as support for 

counsel). But Clark made no move to contact either an investigator or Dr. Globus. 

See Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007) (“[T]he mere hiring of 

an expert is meaningless if counsel does not consult with that expert to make an 

informed decision about whether a particular defense is viable.”). 

 Sixth Amendment precedent and professional guidelines required Clark to 

expeditiously investigate guilt/innocence issues. See, e.g., Doe, 782 F.3d at 434; 

1989 ABA Guideline 11.4.1(A); see also, e.g., ABA Standards for Criminal 

Justice—Defense Function (3d ed. 1993) (hereinafter “ABA Defense Standard(s)”), 

Standard 4-4.1(a) (“Defense counsel should conduct a prompt investigation of the 

circumstances of the case and explore all avenues leading to facts relevant to the 

merits of the case. . . .”). 

 Nearly nine months later, however, “no investigation or pretrial work of any 

kind [had been] conducted in this case.” (ROA 409 at 2.) On July 16, 1999, thensecond counsel Mary Boyte cited the complete lack of investigation and trial 

preparation as a justification for her motion to withdraw from the case. (ROA 409 

at 1–5.) Boyte informed the court that Clark, despite having done none of the 

requisite investigation, was pushing for a November 1999 trial date. (ROA 409 at 

 

42 Kiles’s case was, by this time, in front of a different judge than the one who had 

granted state post-conviction relief. 

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2.) Boyte also alerted the court to the extent of Clark’s failure to investigate up to 

that point: 

1. No investigator had been hired or had done any work on this 

case, despite the court’s allocation of funding; 

2. No witnesses had been interviewed; 

3. No contact had been made with Dr. Globus, again despite the 

court’s appointment of the expert; and 

4. Clark had not reviewed the prior trial and post-conviction 

investigation files, which were in Boyte’s possession and which

Clark refused to collect. 

(ROA 409 at 2.) At that point, to Boyte’s knowledge Clark had possession of and 

had reviewed only police reports and the 1989 trial transcripts, as well as a few 

pages of additional information. (ROA 409 at 2.) Boyte further cited the breakdown 

in communication between Clark and Kiles and her belief that “the Defendant is 

not receiving effective assistance of counsel” before seeking permission to 

withdraw from the case. (ROA 409 at 2–4.) 

 At the hearing on Boyte’s motion to withdraw, Clark laid out for the court 

his investigation to date: he had (1) been “to the place where the bodies were 

found,” (2) obtained the court’s appellate and post-conviction records, (3) reviewed 

the trial exhibits and evidence with the prosecutor, (4) “ordered additional pieces 

of evidence,” as well as copies of all of the relevant photographs, and (5) had the 

investigator at the Office of the Legal Defender—which was conflicted off this 

case—locate witnesses.43 (Tr. Aug. 6, 1999 at 31–33.) Clark made no mention of 

having contacted a single potential expert or witness. (See Tr. Aug. 6, 1999 at 27–

37.) Prosecutor David Powell confirmed that Clark had received police reports and 

grand jury transcripts, had reviewed exhibits, and had “made numerous requests [to 

 

43 Clark added that he had “made a complete review of all of the documentation in 

this case,” but he appears to have been referring to the trial and appellate 

documentation. Certainly he had not read first post-conviction counsel’s file. (Tr. 

Aug. 6, 1999 at 31–32.) 

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the State] to do interviews.” (Tr. Aug. 6, 1999 at 41–42.) Powell also made clear 

that no interviews had occurred—“we haven’t really done any interview 

discovery.” (Tr. Aug. 6, 1999 at 41–42.) After professing his belief that the state 

post-conviction investigation materials were “worthless” (Tr. Aug. 6, 1999 at 30–

31), Clark announced that Kiles—whose prior counsel had won post-conviction 

relief—was “in a better position now than he has ever been with regards to being 

represented adequately and effectively.” (Tr. Aug. 6, 1999 at 35.) 

Clark so proclaimed despite having neglected some of the most basic aspects 

of a criminal-defense investigation. See, e.g., Cannedy v. Adams, 706 F.3d 1148, 

1166 (9th Cir. 2013) (highlighting importance of interviewing potentially crucial 

witnesses); see also, e.g., Weeden, 854 F.3d at 1070 (faulting counsel for failing to 

investigate psychological guilt-phase defense with assistance of expert); Elmore v. 

Ozmint, 661 F.3d 783, 786, 859 (4th Cir. 2011) (holding that counsel were 

ineffective for failing to conduct an independent examination of the State’s forensic 

evidence, when such evidence was central to conviction); 1989 ABA Guideline 

11.4.1(D)(3) (listing the types of witnesses counsel should consider interviewing, 

including “witnesses familiar with aspects of the client’s life history that might 

affect the likelihood that the client committed the charged offense(s)”). 

Accordingly, having conducted not even a minimally adequate investigation, Clark 

was in no position to make reasonable, sound, deference-worthy strategic decisions 

at that time. See, e.g., Bemore v. Chappell, 788 F.3d 1151, 1165 (9th Cir. 2015) 

(deference to strategic judgments is defined in terms of the adequacy of the 

investigation supporting those judgments); Phillips v. Woodford, 267 F.3d 966, 978 

(9th Cir. 2001) (emphasizing that the rejection of an alternative defense cannot be 

considered strategic when not preceded by an investigation allowing for an 

informed decision). 

The lack of preparation, however, did not stop Clark. Although he had done 

no interviews, had consulted with no experts, and had no investigator working on 

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the case (see ROA 414 at 31–49), he had done one thing by the time of the August 

1999 hearing on co-counsel’s motion to withdraw: he had already settled on his trial 

strategy. By the time new second counsel Treasure VanDreumel and investigator 

Mary Meyer joined the defense just days after that hearing,44 Clark had committed 

to the strategy later presented at trial. There were no team strategy discussions, and 

VanDreumel accepted Clark’s uninformed plan without question. For the death of 

Gunnel, the defense would argue that Kiles was guilty of a heat-of-passion crime 

that was not premeditated and therefore not first-degree murder. For the deaths of 

the children, counsel would argue that Kiles was not the perpetrator.45 

 Kiles, whose relationship with Clark had fractured many months earlier, filed 

in September 1999 a motion for new counsel.46 (See ROA 413); see also Claim 1, 

supra. At the hearing on that motion, the court had Clark give sworn testimony 

about a number of issues, including his work to date. (Tr. Oct. 8, 1999 at 39.) Clark 

testified in open court that he had “interviewed more witnesses—more witnesses 

than anybody has interviewed prior to this time, in this case, because the file I 

received never had any transcripts of any witnesses that testified at this trial.” (Tr. 

Oct. 8, 1999 at 40.) In other words, Clark claimed to have interviewed more than 

 

44 After the August 1999 hearing, the court granted Boyte’s motion to withdraw. 

(Tr. Aug. 6, 1999 at 48.) Treasure VanDreumel signed on to the case as second 

counsel within four days of that hearing, and it appears that she brought with her 

investigator Mary Meyer—the first defense investigator to work on the case and to 

use the funding granted over nine months prior. (See, e.g., Tr. Oct. 8, 1999 at 74.) 

45 Even if Clark’s actions to this point could be construed as investigation, that does 

not render the strategy decision reasonable. See, e.g., Wiggins, 539 U.S. at 526 

(stating that “Strickland does not establish that a cursory investigation 

automatically justifies a tactical decision”); Driscoll v. Delo, 71 F.3d 701, 709 (8th 

Cir. 1995) (even when defense counsel elicited a concession from state expert, 

counsel was deficient for having failed to take measures to understand the testing 

performed and the meaning of the results); Dugas v. Coplan, 428 F.3d 317, 328 (1st 

Cir. 2005) (defense counsel failed to adequately investigate a defense that no arson 

occurred, even though counsel had inspected the fire scene, talked with the state’s 

experts, done some reading, and spoken with other defense attorneys). 

46 This was Kiles’s third such plea to the court. (See ROA 395 at 1; ROA 407 at 1.) 

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the zero witnesses interviewed (as far as Clark was aware) by prior trial counsel. 

Clark so testified despite the fact that he still had not bothered to review first state 

post-conviction counsel’s investigative file—he again dismissed it as “worthless” 

(Tr. Oct. 8, 1999 at 65)—even though the file included notes on state postconviction counsel’s interviews of many of the 100 or more witnesses to whom they 

had spoken (PFR2 Dkt. 21 Ex. 7 at 1–3). And Clark so testified even though his 

time logs from the day of his appointment to the day prior to the hearing reflected 

not even one minute spent interviewing any witness.47 (See ROA 414 at 31–49.)

In the two months before trial, long after determining their trial strategy (see 

Tr. Oct. 8, 1999 at 44), Clark and VanDreumel did have the prosecutor set up 

interviews of several witnesses, including law enforcement personnel and State’s 

experts. Apart from the defense’s contact with Imojean Kiles, there is no indication 

that trial counsel conducted a single interview that was not organized by the 

prosecutor.48 Further, trial counsel knew full well that the State planned to call 

several experts, among them the pathologist who conducted the autopsies of two 

victims, the blood-spatter expert who had testified during the 1989 trial, and a DNA 

expert. (See ROA 446.) Even so, and despite Kiles’s pleas to bring defense experts 

on board, counsel still declined—based on their previously determined trial 

strategy—to retain and consult with even one independent expert before trial.49 

 

47 Clark also testified that he had reviewed the evidence, read “all of the transcripts,” 

reviewed the “entire appellate file” and made arrangements to have it copied, 

ordered photographs, reviewed exhibits, requested additional evidence not 

presented at trial with forensic significance, been to the crime scene, and been to 

the river bed, “where the bodies were recovered.” (Tr. Oct. 8, 1999 at 39–40.) He 

still did not hint at any expert consultation.

48 Investigator Mary Meyer had two primary tasks: (1) maintain contact with 

Imojean Kiles, and (2) unearth background information on other witnesses. Her 

focus was not on interviewing witnesses. 

49 Clark’s reliance on the prosecutor to arrange what little investigation occurred is 

further cause for alarm. Clark repeatedly cited his friendship with Powell as a virtue 

in court, and he depended upon Powell and law enforcement to arrange witness 

interviews and the like. In doing so, Clark butted up against the fundamental 

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As a result, the defense theory presented at trial for the death of Gunnel was 

deeply problematic. Counsel conceded that Kiles had killed Gunnel, but argued that 

he had done so (1) while intoxicated, and (2) in the heat of passion. (See, e.g., Tr. 

July 10, 2000 at 40 (Clark announcing during opening statement that Kiles struck 

Gunnel “during the heat of the passion, a heated, ugly fight”).) Counsel evidently 

hoped that intoxication, heat of passion, or the combination of the two would 

convince the jury to determine that Kiles was guilty not of first-degree murder but 

instead of a lesser-included offense. 

Counsel’s focus should have been on undercutting evidence of 

premeditation. In order to convict Kiles of first-degree murder, the State had to 

convince the jury that Kiles knowingly killed Gunnel and that he did so with 

premeditation. Given Kiles’s admission that he killed Gunnel, the only real issue 

was that of premeditation.50 Importantly, the jury would have had to conclude that 

Kiles was not guilty of first-degree murder before the jury could even consider any 

lesser-included offense. (Tr. July 19, 2000 at 95–96.) In other words, if the jury 

found that the State had proven beyond a reasonable doubt that the killing was 

premeditated and knowing, then nothing else mattered. 

Under Arizona case law, however, intoxication was not a legal defense to 

first-degree murder as charged in this case (i.e., to premeditation). The Arizona 

Supreme Court had previously rejected the argument that intoxication could negate 

either premeditation or the mens rea of “knowingly.” See State v. Rankovich, 765 

P.2d 518, 524 (Ariz. 1988) (holding that a defendant charged with knowingly 

 

principle that the purpose of defense counsel is to ensure “a reliable adversarial 

testing process.” Strickland, 466 U.S. at 688. Counsel’s duty to make that “testing 

process work in the particular case [is] an obligation that cannot be shirked because 

of the lawyer’s unquestioning confidence in the prosecution.” Elmore, 661 F.3d at 

859 (citation and internal quotation marks omitted). 

50 “Knowingly means that a defendant acted with awareness of the existence of 

conduct or circumstances constituting an offense.” (Tr. July 19, 2000 at 91.) Trial 

counsel did not attempt to argue that the crime was not “knowingly” committed. 

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committing first-degree murder was not entitled to a voluntary-intoxication 

instruction and that “the fact that first-degree murder requires a finding of 

premeditation has no bearing on this result”). Even while trial counsel argued that 

the jury could consider intoxication, they acknowledged that it was not on its own 

a legal defense to the charge of knowing first-degree murder. (Tr. July 18, 2000 at 

18 (VanDreumel agreeing with court that “from a legal standpoint intoxication is 

not or was not at the time a defense to a crime charged as knowingly” and that the 

jury “will not be instructed” otherwise).) Ultimately, the trial court gave the jury 

the legal definition of voluntary intoxication, but in accordance with state law did 

not instruct jurors that intoxication could figure into their determination as to 

premeditation.51 (Tr. July 19, 2000 at 92.) Accordingly, the jury had no courtsanctioned mechanism through which to conclude that intoxication affected its 

decision on first-degree murder.52 This aspect of counsel’s defense was, at best, 

legally and strategically suspect. 

Trial counsel’s heat-of-passion argument against premeditation fared no 

better. Kiles’s testimony was the principal evidence of how his fight with Gunnel 

unfolded and, therefore, of heat of passion. Kiles testified that Gunnel was angry at 

him for using her food stamps to get drugs and then using the drugs before he 

returned home; the two were arguing. (Tr. July 17, 2000 at 159.) (In contrast, 

Kiles’s mother had previously suggested that Gunnel had needed the food stamps 

 

51 This instruction declared to the jury that “[n]o act committed by a person while 

in the state of voluntary intoxication is less criminal by reason of his having been 

in such condition.” (Tr. July 19, 2000 at 92.) 

52 If counsel were going to argue effectively that intoxication could negate 

premeditation even without an accompanying jury instruction, that argument 

required substantial evidentiary support of the sort discussed below. Clark’s proffer 

to the jury that Kiles’s “perception [wa]s a little skewed from having imbibed, you 

know, the cocaine and the alcohol,” supported largely by Kiles’s own testimony, 

was far from sufficient. (Tr. July 10, 2000 at 44–45; see also ROA 225 Ex. 49 at 1 

(juror at 1989 trial noting that lackluster intoxication argument made at first trial 

was unimpressive in light of jury instructions, but that juror had wanted to know 

more about how Kiles’s cocaine addiction affected him).) 

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to buy food for her children. (Tr. July 17, 2000 at 145.)) Kiles continued, “[Gunnel] 

had pretty much been fighting with me the whole night, pushing on me, pulling—

this and that. Then she just slapped me. . . . It was so heated.” (Tr. July 17, 2000 at 

163–64.) “She slapped me. I asked her not to do that. Well, I told her, [d]on’t slap 

me again. More words was exchanged and she slapped me again.” (Tr. July 17, 

2000 at 165.) When asked what happened next, Kiles testified, “I just reached down 

and grabbed the jack and just swung it.” (Tr. July 17, 2000 at 165.) 

The problem was that, in order for the jurors to determine that the crime 

occurred in the heat of passion and was therefore not premeditated, counsel needed 

two things to happen. The jury not only needed to accept as true Kiles’s testimony, 

but also needed to conclude that his testimony was sufficient to establish that he 

had acted in the heat of passion and to give rise to reasonable doubt regarding 

premeditation. That counsel failed to corroborate Kiles’s testimony was one major 

hurdle to success. See Bennett v. Cate, 407 F. App’x 213, 215 (9th Cir. 2010). That 

counsel also did little to challenge the State’s theory or purported forensic evidence 

of premeditation practically ensured that this argument would fall flat. 

Finally, counsel argued that the jury should find that Kiles committed heatof-passion manslaughter. In order to so find, the jury would have had to find, among 

other things, that (1) Kiles “acted upon a sudden quarrel or heat of passion,” and 

(2) the quarrel “resulted from adequate provocation by the person who was killed.” 

(Tr. July 19, 2000 at 94.) “Adequate provocation” required “conduct or 

circumstances sufficient to deprive a reasonable person of self control.” (Tr. July 

19, 2000 at 94.) In arguing that the killing occurred in the heat of passion, counsel 

were contending to the jury that Gunnel’s second slap was adequate provocation 

that would cause a reasonable person—not Kiles himself, not an intoxicated person, 

but a reasonable person—to lose control.53 This is a particularly high hurdle when 

 

53 Clark argued in closing that the jury had to consider Kiles’s intoxication when 

considering what constituted adequate provocation (Tr. July 19, 2000 at 72), but 

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the jury may have concluded from Imojean Kiles’s and others’ testimony that 

Gunnel’s anger stemmed from the fact that her food stamps, which she had needed 

to buy food for her children, had instead been used to purchase drugs for others. In 

effect, counsel were telling the jury that Gunnel’s second slap was provocation 

enough that it was reasonable to kill her. A jury could easily have found that 

argument more offensive than persuasive, leaving the defense with no defense at 

all to first-degree murder.54 

Trial counsel had scant hope of such success with such a legally flawed and 

factually dubious strategy. But having settled on that strategy early on, counsel 

tailored their subsequent investigative decisions to bolster that approach, leaving 

them—and Kiles—ill-equipped for trial when the time came. 

2. Had trial counsel conducted an adequate investigation, 

counsel would have been able to develop a persuasive 

defense strategy. 

Instead of embracing a deficient defense strategy early on, trial counsel could 

have conducted an adequate investigation—one that involved consulting with 

independent forensic experts, speaking with one or more experts who could have 

helped explore viable defenses to premeditation, and interviewing witnesses 

familiar with Kiles’s character, history, and addictions. Armed with that 

information, counsel would then have been able to prepare a legally and factually 

defensible challenge to the charge of first-degree murder. 

Preliminarily, as the Supreme Court has recognized, “[c]riminal cases will 

arise where the only reasonable and available defense strategy requires consultation 

with experts or introduction of expert evidence.” Hinton v. Alabama, 571 U.S. 263, 

 

again, that seemed inconsistent with the objective standard laid out in the jury 

instructions. 

54 Because of the inadequate guilt-phase voir dire, counsel did not know, for 

example, whether seated jurors had personal and familial experience with domesticviolence incidents or how such jurors might have perceived such an argument. See 

Claim 2, supra. In fact, at least one seated juror had personal exposure to a similarly 

violent homicide before her jury service. 

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273 (2014). That is particularly true when the State’s case features several experts, 

including forensic experts who would, per the State, explain to the jury “exactly 

what happened” at the crime scene. (Tr. July 10, 2000 at 19–20); see Richey, 498 

F.3d at 362 (identifying cases with critical scientific evidence and “wherein lawyers 

altogether fail to hire an expert” as the “most egregious” of cases); see also Hinton, 

571 U.S. at 273 (highlighting import of consulting with an adequate expert when 

forensic evidence was a centerpiece of the State’s case). In this case, trial counsel 

should have consulted with several experts to fulfill counsel’s obligation to 

independently examine the forensic evidence. Elmore, 661 F.3d at 859; Dees v. 

Caspiri, 904 F.2d 452, 454 (8th Cir. 1990) (per curiam) (“Considering the 

importance of the shoe print evidence in this case, counsel had a duty to make a 

diligent investigation of the forensic evidence and its potential weaknesses.”); see 

also, e.g., 1989 ABA Guideline 11.4.1(D)(7) (requiring independent experts to help 

with preparation of the defense). 

Counsel should have consulted with the following medical and forensic 

experts: 

Pathologist: The State’s medical examiner, Dr. Mallon, testified at trial that 

Gunnel showed evidence of a defensive wound on her forearm. (Tr. July 13, 2000 

at 99.) At the defense’s prodding, Dr. Mallon further testified that Gunnel must 

have received that wound early on during the altercation, as she needed to have 

been conscious to incur a defensive wound. (Tr. July 13, 2000 at 105.) It appeared 

that defense counsel had accepted that Gunnel had a defensive wound and were 

trying to spin it as evidence of a serious fight between Gunnel and Kiles—evidence 

that he acted in the heat of passion. (Tr. July 10, 2000 at 46 (Clark promising the 

jury “medical testimony” corroborating that there was a fight).) However, that 

attempted spin made no sense and was thus unreasonable: One person can attack 

another out of the blue and still cause a defensive wound. 

If, instead, counsel had consulted an independent pathologist, that expert 

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would have educated counsel about defensive wounds. See, e.g., Lindstadt v. 

Keane, 239 F.3d 191, 201 (2d Cir. 2001) (criticizing counsel for failing to educate 

themselves on meaning of physical “evidence” of abuse cited by state expert). 

Counsel would have learned that, while Gunnel’s wound was “consistent with” a 

defensive wound, that meant only that the possibility that the wound was defensive 

could not be excluded. There is no way to establish that the wound was in fact a 

defensive wound. Indeed, as an independent pathologist would have testified, it is 

eminently possible that Gunnel received the arm wound after she had already died. 

Had counsel known that Gunnel’s broken forearm was very plausibly not a 

defensive wound, they could have challenged Dr. Mallon’s premise, rather than 

committing to a bizarre story that the wound was evidence of a fight and 

emphasizing the aggravating possibility that Gunnel was conscious for that wound. 

Counsel could have had their expert testify to the facts, as opposed to Dr. Mallon’s 

suppositions. See Thomas v. Clements, 789 F.3d 760, 769–71 (7th Cir. 2015) 

(finding counsel ineffective when decision “[t]o not even contact an expert . . . was 

to accept [the State’s expert’s] finding of intentional death without challenge and 

basically doom the defense’s theory of the case”). At the very least, a defense expert 

could have helped fashion an effective cross-examination, in particular one that 

highlighted the fact that Dr. Mallon seemed during his 1989 testimony far less 

certain then he seemed in his 2000 testimony that the wound was defensive in 

nature. (Compare Mallon Tr. Dec. 12, 1989 at 8 (such wounds “can be defensive 

wounds”), with Tr. July 13, 2000 at 105 (agreeing that arm wound was a defensive 

wound)); see Lindstadt, 239 F.3d at 201–02 (deeming counsel ineffective for failing 

to retain expert or otherwise conduct adequate research to cross-examine State’s 

expert); see also 1989 ABA Guideline 11.4.1(D)(7) (instructing counsel on 

importance of independent experts to help provide “adequate understanding of the 

prosecution’s case”). 

Blood-spatter expert: State’s expert Tom Bevel testified that, among other 

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things, there had been a minimum of 14 blows in the bedroom where the children 

were killed, their attacker was right-handed, and there was evidence of movement 

on the bed. (Tr. July 14, 2000 at 16, 19, 23, 27.) The defense embraced his 

testimony—Clark later hailed Bevel in closing as “the foremost expert” in the field 

(Tr. July 19, 2000 at 57)—but not because any testimony elicited by the State was 

helpful to the defense. Instead, trial counsel had Bevel explain to the jury how blood 

moves and that there was no evidence of coagulation on the bloody shoeprints that 

appeared to have been made by Kale Johnson’s Converse shoes. (Tr. July 14, 2000 

at 40–44.) The lack of evidence of coagulation meant that the blood was “[f]resher” 

when stepped in (Tr. July 14, 2000 at 43–44), suggesting that Johnson was at 

Gunnel’s apartment closer in time to the killings than he had admitted. In response 

to a jury question, not one from the defense, Bevel testified that the most “primitive 

stages” of coagulation are visible approximately 30 minutes after the blood is 

released. (Tr. July 14, 2000 at 54.) 

Even though counsel sought some helpful testimony from Bevel, that did not 

obviate their duty to independently investigate his work. They could well have hired 

an independent expert in blood-spatter analysis, such as Peter Barnett, to describe 

blood movement and coagulation for the jury. (See, e.g., ROA 225 Ex. 59; ROA 

1189 at 32–35.) Moreover, the need for due diligence on Bevel’s work was 

heightened because of his checkered history: his testimony in other cases has come 

into question for its unreliability or indefensibility. See Rivas v. Fischer, 780 F.3d 

529 (2d Cir. 2015) (concluding counsel’s conduct in failing to investigate medical 

examiner’s qualifications and background was deficient). 

Indeed, an independent expert could have informed counsel that Bevel’s 

conclusions were incorrect on several fronts. First, Bevel’s claim that he could 

count the minimum number of blows in an area was unfounded. (See Tr. July 14, 

2000 at 9.) As a different expert could have explained to trial counsel—and as was 

well known by 2000—a separate blow or impact is not needed to produce each 

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castoff pattern; a separate movement of the instrument carrying blood (even if it 

does not strike anything) is sufficient. In other words, the number of castoff patterns 

reflects the number of swings of the instrument, not the number of times it hit 

anything. (See ROA 225 Ex. 79 at 4 (noting that castoff “comes off a bloody object 

as it is swung”); see also ROA 1189 at 35.) Second, Bevel erred in saying that the 

rightward arcing pattern of the blood stains indicated a right-handed assailant. (See 

Tr. July 14, 2000 at 19.) Instead, all that the pattern meant was that the swing was 

to the right, which can be achieved with the right hand, with both hands, or with the 

left hand. Nothing could be concluded about handedness. Third, normal clotting 

time for blood that has left the body is five to eight minutes, not the 30 minutes 

posited by Bevel. (See Tr. July 14, 2000 at 54.) Finally, Bevel appeared to assume 

that all of the blood spatter on the walls occurred during the attack; however, it is 

possible that some of the spatter happened afterward, for example when the bodies 

were moved. 

Trial counsel were on notice of the need for independent evaluation, not only 

because of the State’s heavy reliance on Bevel’s testimony, but because the first 

state post-conviction counsel had asserted that 1989 trial counsel were ineffective 

for not challenging that same testimony from Bevel. (See ROA 225 at 37–41); see 

also, e.g., Elmore, 661 F.3d at 786 (admonishing defense counsel for “blind 

acceptance of the State’s forensic evidence”). With testimony from an independent 

expert, counsel could have conveyed the information about blood spatter and 

bloody shoeprints that they wanted to highlight, along with the useful detail that 

coagulation occurs even faster than Bevel had suggested. That testimony would 

have undercut Kale Johnson’s testimony and, by extension, bolstered Kiles’s 

credibility—both that he was not responsible for the children’s death and more 

generally, including his description of not premeditating Gunnel’s death. Counsel 

could further have elicited expert testimony (1) on the fact that the blood spatter 

and castoff in the living room was near the ground, suggesting that Gunnel was not 

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standing for any blow that produced spatter,55 and (2) that the blood stain in the 

chair was consistent with the blood source—presumably Gunnel’s head injury—

being low to the chair cushion.56 Those tidbits would have provided key 

corroboration for Kiles’s testimony that Gunnel fell into the chair after a single blow 

and, in turn, for his lack of premeditation. (Tr. July 17, 2000 at 165–66.) 

Anything—especially expert testimony—that corroborated Kiles’s testimony 

would have buttressed the defense as a whole. See, e.g., Cunningham v. Wong, 704 

F.3d 1143, 1168 (9th Cir. 2013) (Pregerson, J., concurring in part and dissenting in 

part) (recognizing that “[a]n expert opinion is one from an objective third party that 

carries an aura of special reliability and trustworthiness,” while a defendant’s 

testimony “may be viewed by the jury as a desperate attempt to save himself” 

(internal quotation marks omitted)). 

Finally, counsel could further have damaged the credibility of a crucial State 

witness through an effective cross-examination on Bevel’s work in other cases, as 

well as on how Bevel counted his minimum number of blows and determined 

handedness. See Dugas, 428 F.3d at 331–32 (counsel deficient for failing to consult 

expert or research science sufficiently to challenge State’s expert witnesses). That 

the jurors asked questions on Bevel’s testimony reflected its import to them, and 

counsel’s failure to consult an expert about blood-stain analysis before trial meant 

that they missed crucial opportunities to advance their case. (See Tr. July 14, 2000 

at 54); see also, e.g., Bennett, 407 F. App’x at 215 (“The jury asked questions . . . 

that revealed the critical importance of the blood evidence.”).

Crime-scene management expert: Yuma law enforcement officers, including 

Rodgers, testified that a number of items of forensic interest had not been tested, 

 

55 The first blow to a victim does not produce spatter. (Tr. July 14, 2000 at 26.) 

56 Bevel testified to these two points in 2006, during the State’s aggravation-phase 

direct examination. (Tr. Mar. 27, 2006 at 65–66, 71.) With proper preparation and 

the aid of a defense expert, trial counsel could have brought out this corroborative 

information at the guilt-phase proceedings. 

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including latent prints lifted from surfaces in the apartment, a bloody fingerprint 

from the living room door, and blood on a pillow found in the east bedroom. (See, 

e.g., Tr. July 17, 2000 at 29, 63–64.) Rodgers further testified that photographs had 

not been taken of tire tracks and shoeprints found near the river, even though the 

tire tracks appeared similar to those from Kiles’s car and the shoeprints resembled 

Kale Johnson’s shoeprints. (Tr. July 17, 2000 at 92–95.) Analysis of such items 

could have helped corroborate the defense on important points, including that (1) 

the fingerprint on the door and the blood on the pillow may have belonged to 

someone other than Gunnel, leaving no forensic indication that she was conscious 

after the initial blow, and (2) Johnson’s shoeprints were at the likely disposal site 

for the children’s bodies (and therefore that Johnson was lying during his 

testimony). Counsel clearly recognized the importance of these matters—they 

requested a Willits instruction allowing the jury to draw an adverse inference from 

the police’s failure to preserve evidence. (Tr. July 18, 2000 at 21; ROA 489 at 4.) 

Even the jury’s interest was piqued, as illustrated by the question submitted by the 

jury to Rodgers about the failure to analyze latent prints. (Tr. July 17, 2000 at 108.) 

Had defense counsel consulted with an expert in crime-scene investigation, 

that expert would have informed them as to whether the Yuma Police Department’s 

decisions regarding what to test and what not to test were reasonable or whether to 

request testing of additional items. See Lindstadt, 239 F.3d at 201–02. An expert 

would also have helped counsel develop effective cross-examinations on the 

reasonableness of law enforcement’s decisions, as well as about the nature and 

magnitude of the problems created for investigators by a compromised crime scene. 

With such information in hand, counsel might well have been able to convey that 

the attack against Gunnel had not started in the bedroom and that she had not left a 

fingerprint on the door after being hit—both support for Kiles’s testimony. See, e.g., 

Cunningham, 704 F.3d at 1168 (Pregerson, J., concurring in part and dissenting in 

part). Counsel could also have more conclusively established that Johnson’s 

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shoeprints were at the disposal site, which would have further undercut Johnson’s 

credibility and bolstered Kiles’s. 

If counsel had consulted with such experts as a pathologist, blood-spatter 

expert, and crime-scene management expert, counsel would have been far better 

equipped to start making certain strategy decisions.57 But, because their 

“investigation into the State’s forensic evidence never started, there could be no 

reasonable strategic decision either to stop the investigation or to forgo use of the 

evidence that the investigation would have uncovered.” Elmore, 661 F.3d at 864. 

Likewise, counsel should have consulted with appropriate experts before 

declining to pursue the impulsivity defense recognized by State v. Christensen, 628 

P.2d 580 (Ariz. 1981). See, e.g., Bemore, 788 F.3d at 1165 (deeming counsel 

ineffective when “a potentially viable alternative defense” was available but not 

explored); Phillips, 267 F.3d at 976; Sowell v. Anderson, 663 F.3d 783, 790–91 (6th 

Cir. 2011) (counsel did not make a reasonable choice among alternative strategies 

when choice stemmed from ignorance about evidence); see also Wiggins, 539 U.S. 

at 521. In Christensen, the Arizona Supreme Court held that a tendency to act 

impulsively can negate premeditation: “The establishment of the character trait of 

acting without reflection tends to establish that appellant acted impulsively. From 

such a fact, the jury could have concluded that he did not premeditate the homicide.” 

628 P.2d at 583. While an expert could not testify to the ultimate jury question 

 

57 Counsel should also have consulted with a DNA expert or other appropriate 

experts before deciding not to challenge the State’s evidence regarding Shemaeah’s 

death. (See ROA 1189 at 36.) This is especially true given Dr. Wiltbank’s improper 

use of statistics in his testimony. See Nat’l Institute of Justice, DNA for the Defense 

Bar, June 2012, at 34 (“Consulting is invaluable in DNA cases and can assist 

counsel in understanding all of the issues. . . . Typically, the question in a DNA case 

is not ‘Do I need an expert?’ but rather ‘What kind of expert do I need?’. . . . If the 

statistics are questionable or flawed, a statistician or population geneticist is a much 

better choice. . . .”). While Kiles is not presently challenging his conviction for 

Shemaeah’s death, the defense’s failure to investigate before making this decision 

confirms the broader failure to investigate. 

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whether the defendant was acting reflexively at the time of the killing, the expert 

could testify to a defendant’s tendency to act reflexively and the bases of such an 

opinion. Id. at 582–84. Counsel were well aware of the Christensen defense and its 

potential applicability to Kiles’s case, as first state post-conviction counsel had 

successfully asserted that 1989 trial counsel was ineffective for failing to investigate 

and present the defense.58 (ROA 225 at 1–2, 66); see also Bemore, 788 F.3d at 

1165–66 (noting that counsel was on notice of the defense he ineffectively failed to 

investigate). And, as the only viable way to counter the first-degree murder charge 

was to undercut the case for premeditation, counsel should not have discounted so 

lightly a defense to premeditation that had been espoused by Arizona courts. 

To adequately investigate the applicability of the Christensen defense, 

counsel should have spoken to at least some of the following experts: 

Psychiatrist and/or psychologist: As psychiatrist and neurologist Dr. Globus 

demonstrated at the 1996 state post-conviction hearing and again during the 2006 

penalty phase, a psychiatrist or psychologist would have helped defense counsel 

understand impulsivity and how it plays out in real-life situations. (See Tr. Feb. 21, 

1996 at 167–21; Tr. May 8, 2006 at 3–51.) Had counsel consulted a psychiatrist or 

psychologist, that person would have explained that impulsivity is a “term of art” 

meaning a “behavior or more often a whole series of behaviors that are performed 

in a semi-automatic way without evaluating the goals . . . or assessing the 

consequences of the behavior.” (Tr. May 8, 2006 at 33.) It is not the case that an 

impulsive person can never consider consequences—that would involve complete 

ablation of the frontal lobe—but only that such a person’s ability to consider 

 

58 Counsel’s failures in this aspect are even more pronounced because Clark and 

VanDreumel believed that the crime was caused by Kiles’s impulsivity, as counsel 

latched onto his impulsivity as mitigation shortly after the guilt-phase proceedings 

and made impulsivity a central theme of the 2006 mitigation case. (See, e.g., ROA 

509 Ex. A at 1; Tr. Apr. 25, 2006 at 101 (Dr. Globus testifying that homicides were, 

to a reasonable degree of medical certainty, attributable to Kiles’s impulsivity, over 

which he had no control).) 

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consequences is significantly impaired. An impulsive person might do something, 

or even a sequence of things, without thinking, especially when impaired.59 (See 

Apr. 25, 2006 at 99–100.) He might also do something impulsively, again without 

thinking, and regret it immediately afterward or even take steps to mitigate his 

actions. (See Tr. Feb. 21, 1996 at 220.) Even acts that do not on their face seem 

impulsive may in fact be done without any thought as to consequence. (Tr. May 8, 

2006 at 36–37 (Dr. Globus explaining why Kiles’s involvement in a 1984 fight 

might well have been impulsive, even though Kiles claimed he “sat down and 

thought” before assaulting the other individual).) The operative issue is whether the 

person considered the consequences of his actions before acting. (Tr. May 8, 2006 

at 36.) 

Moreover, an expert could have informed trial counsel of some of the major 

causes of impulsivity, such as brain damage (including damage due to in utero 

exposure to toxins), mental illness that interferes with someone’s ability to 

understand his surroundings, and intoxication. (Tr. Feb. 21, 1996 at 177, 192; Tr. 

May 8, 2006 at 33–34.) 

A psychiatrist or psychologist could, relatedly, have reviewed Kiles’s 

personal history and his family history—including his sister’s and parents’ own 

struggles with impulsivity60—and interviewed him to assess whether he had a 

tendency toward impulsivity. (See ROA 225 Ex. 60.) By reviewing Kiles’s personal 

history, an expert would have seen that Kiles suffered from all of the major causes 

of impulsivity and that his behavior over many years reflected that impulsive nature. 

 

59 According to Dr. Globus, in response to an environmental stimulus, “like being 

struck . . . instead of going through the process of thinking about the consequences 

of behavior, [an impulsive person] go[es] directly to the behavior. So there’s no 

imposition of thinking between the impulse . . . and the behavior.” (Tr. May 8, 2006 

at 34–35.) 

60 For example, Kiles’s sister, Janell Hawkins, suffered from kleptomania (cf., e.g., Tr. Feb. 21, 1996 at 185; ROA 225 Ex. 36 at 23–24, 34–35, 42–43), evidencing her 

struggles with impulsivity (Tr. May 9, 2006 at 38-39). 

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(See ROA 225 Ex. 60 at 26–37.) 

With that background, counsel would have understood how to educate the 

jury about Kiles’s seemingly lifelong impulsivity, as they did at the mitigation 

phase through Dr. Globus’s testimony. Such evidence would have been pivotal to 

counsel in trying to determine an appropriate guilt-phase strategy. 

Neuropsychologist and/or neuroimaging specialist: Trial counsel should 

further have consulted with a neuropsychologist and/or a neuroimaging specialist 

prior to settling on their defense strategy. See Bemore, 788 F.3d at 1165–66; 

Phillips, 267 F.3d at 976–80. Impulsivity is a result of brain dysfunction generally 

attributable to some combination of brain damage, mental illness, childhood 

trauma, and substance abuse. Accordingly, counsel should have sought out 

neuropsychological testing and neuroimaging to learn whether Kiles had 

demonstrable deficits of the sort associated with impulsivity and its underlying 

causes. Indeed, later neuropsychological, especially executive-function, testing 

revealed “clear indications . . . of impulsivity and difficulties with self-regulation,” 

which became even more apparent when considered in the context of Kiles’s 

history.61 (PFR2 Dkt. 27 Ex. 24 at 1.) In that testing, neuropsychologist John Toma, 

Ph.D., repeatedly highlighted Kiles’s impulsivity (see, e.g., PFR2 Dkt. 27 Ex. 24 at 

2), and he diagnosed Kiles with a disorder defined in large part by that impulsivity 

(PFR2 Dkt. 27 Ex. 24 at 2). Similarly, had trial counsel obtained brain imaging and 

consulted a neuroimaging expert (for example, a radiologist), counsel would have 

learned that Kiles had brain damage, including a reduced-size corpus callosum and 

damage to the frontal lobe, that was observable on brain scans. (See PFR2 Dkt. 28 

Ex. 25 at 7 (expert during second state post-conviction proceedings discussing 

Kiles’s brain abnormalities and damage observable on images).) Both forms of 

brain damage are causally related to impulsivity. (See, e.g., Tr. May 8, 2006 at 33–

 

61 Kiles has also been diagnosed with Attention Deficit Hyperactivity Disorder, an 

impulse-control related disorder. (Tr. May 9, 2006 at 41, 64.) 

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34.) 

If counsel had armed themselves with such information, they would have 

understood that they could (1) contend persuasively that Kiles had an impulsive 

nature, and, as importantly, (2) ground that information in neuropsychological and 

neuroimaging evidence to make clear that impulsivity is not simply a bad 

personality trait, but the result of brain dysfunction. Expert consultations would 

have painted for counsel a picture of an individual whose brain did not work the 

same way a “normal” adult brain is expected to work. Counsel, in turn, could have 

painted that picture for the jury to help demonstrate why Kiles did not premeditate 

the killing of Gunnel. Counsel had a duty to obtain such information before 

deciding strategy. See Bemore, 788 F.3d at 1165–66, Phillips, 267 F.3d at 976–80. 

Pharmacologist or neurotoxicologist: Additionally, counsel should have 

consulted with a pharmacologist, neurotoxicologist, or similar individual with 

expertise in the effect on the brain of drugs and alcohol. Counsel were on notice of 

Kiles’s alcoholism, cocaine addiction, and related issues, as well as of his familial 

history of alcoholism and other addictions. (See, e.g., Tr. Feb. 21, 1996 at 178–86.) 

Indeed, counsel made a feeble attempt to communicate Kiles’s drug use to the jury 

and to use that as evidence of a lack of premeditation. (See, e.g., Tr. July 10, 2000 

at 44 (Clark setting forth in opening that “Alvie by this time has had a little bit to 

drink, he’s had a lot of drugs to do.”).) 

Still, in order to fulfill the obligation to investigate, counsel should have 

consulted a pharmacologist or comparable expert. See Bemore, 788 F.3d at 1165–

66, Phillips, 267 F.3d at 976–80. Such an expert could have explained the effects 

of long-term addiction on the brain and on an individual’s thought processes. That 

sort of expertise is particularly useful in a case like this, where counsel needed to 

understand the interplay of numerous substances, including alcohol. In fact, if 

provided with an adequate social history, a pharmacologist would have offered that 

Kiles was in a drug-induced psychosis at the time of the crime. (PFR2 Dkt. 28 Ex. 

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25 at 5.) Because of the extent to which that psychosis disordered Kiles’s thought 

processes, Kiles was experiencing severe paranoid delusions, impaired judgment, 

and impaired mental flexibility when he killed Gunnel. (PFR2 Dkt. 28 Ex. 25 at 5.) 

Counsel tendered to the jury only meager evidence of drug use, primarily through 

Kiles’s own testimony. Instead, counsel could have had an expert present a 

compelling explanation of what was happening inside Kiles’s head at the time. Such 

evidence would have supported the idea that Kiles was acting impulsively and 

without premeditation at the time of the crime and, accordingly, was crucial for 

counsel to know before adopting a strategy.62 

 Beyond speaking with experts, counsel had a duty to interview lay witnesses 

who could have enlightened counsel on issues bearing on premeditation, including 

Kiles’s impulsivity, the causes of his impulsivity, and the debilitating extent of his 

addictions. See Cannedy, 706 F.3d at 1161 (counsel deficient for failing to interview 

potentially favorable witness “when that witness had been clearly identified, . . . 

was easily accessible[,] and [was] willing to provide information”); see also 1989 

ABA Guideline 11.4.1(D)(3) (instructing counsel to interview potential witnesses 

regarding “aspects of the client’s life history that might affect the likelihood that 

the client committed the charged offense(s)” (i.e., premeditated murder)). While 

counsel had access to a great deal of this information from earlier proceedings, 

nothing that counsel did reflects that they made use of—or even that they 

reviewed—the relevant affidavits and expert reports discussing Kiles’s impulsivity 

or addictions before Clark committed to his defense approach. (See Tr. Aug. 6, 1999 

at 31–33.) That noted, as part of a reasonable investigation preceding that decision, 

 

62 Such information about the effects of addiction was critical even to the 

intoxication defense that trial counsel ultimately presented, as presumably only 

powerful evidence of the effects of intoxication could have convinced jurors to take 

intoxication into account when assessing premeditation. Instead, counsel offered 

the jury some paltry evidence of Kiles’s drug use and none at all of the effects of 

his addictions on his thinking or his ability to premeditate. 

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defense counsel should have tried to speak to at least some of the following 

witnesses: 

 Witnesses regarding impulsivity: Numerous people who knew Kiles 

throughout his life could have provided trial counsel with information that bore 

upon his impulsive nature and/or the causes of such impulsivity. For example, 

Kiles’s sister Janell Hawkins could have informed counsel of Kiles’s history of 

childhood trauma and physical abuse—terrors of the sort that lead to mental 

illness—as well as the familial history of addiction, including her own. (See ROA 

225 Ex. 39.) As noted earlier, such problems are known causes of the brain 

dysfunction associated with impulsivity. Janell Hawkins could also have spoken of 

her own problems with shoplifting (see, e.g., ROA 225 Ex. 39 at 5, 7), reflecting an 

issue with impulsivity that mirrored Kiles’s. 

Imojean Kiles could have told counsel about any number of aspects of Kiles’s 

childhood, including the head trauma he suffered when struck by a car at age five—

childhood traumatic brain injury is a major causal factor in producing impulsecontrol disorders—and the violence he endured at his father’s hands.63 (See, e.g., 

ROA 225 Ex. 37.) Again, brain damage and mental illness stemming from 

childhood trauma can cause impulsivity. 

Similarly, Kiles’s aunt, Darnella Long, among numerous other relatives, 

could have spoken to the trauma Kiles endured as a child and the severe dysfunction 

of the Kiles family. (See ROA 225 Ex. 54 at 5.) Moreover, Kiles’s associates from 

around the time of the crime and the years before, including Griffen Lewis, Jimmy 

Gilmore, and Virgil Schultz, would have been able to tell counsel that Kiles was 

short-fused and would have been able to provide anecdotes about his outbursts. 

(See, e.g., ROA 225 Ex. 44 at 1; ROA 225 Ex. 46 at 1.) Such behavior is strongly 

associated with impulsivity. (PFR2 Dkt. 27 Ex. 24 at 3.) 

 

63 While counsel spoke to Imojean Kiles before guilt-phase proceedings, there is 

nothing to indicate that the discussion covered the types of matters noted above. 

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Accordingly, these witnesses could have provided useful social-history 

context for experts in diagnosing Kiles’s impulsivity and its causes and for counsel 

in determining whether and how to present that information to the jury. See Bemore, 

788 F.3d at 1164–66 (counsel ineffective for failing to explore viable mental-health 

defense, including by investigating statements from friends and family that should 

have put counsel on notice of possible defense). 

 Witnesses regarding Kiles’s addictions: Any number of people who knew 

Kiles in the years, and particularly in the weeks, around the time of the crime could 

have furnished useful information to counsel about Kiles’s addictions and their 

effects on his thinking. For example, Kiles’s associates, such as John Hendrix, Jr., 

Griffen Lewis, Virgil Schultz, and Walter “Pierre” Hogan, could have conveyed 

just how terribly Kiles’s drug usage had disordered his thinking around the time of 

the crime. According to Hendrix, “Alvie was completely out of it. He acted crazy. 

He was really high on some kind of drug. . . . [He] was rambling and making little 

sense. . . . He seemed deranged.” (ROA 225 Ex. 41 at 1.) Lewis, who had seen 

Kiles’s addictions worsen over time, described Kiles as being around the time of 

the crime “as deep into drugs as [Lewis] had ever seen him.” (ROA 225 Ex. 44 at 

1.) Schultz noted that on February 10, 1989, Kiles was “strung out. . . . Alvie was 

acting very crazy. He was coming off the wall.” (ROA 225 Ex. 46 at 1.) Schultz 

had to leave Kiles because of how “high and out of control” Kiles was that day. 

(ROA 225 Ex. 46 at 1.) Even some of Kiles’s friends and colleagues from the Air 

Force had valuable information on the progression of Kiles’s alcoholism. (See, e.g., 

ROA 225 Ex. 58 at 1 (noting that while in the Air Force, Kiles started drinking 

“more and more,” to the point that “he couldn’t lift his head off the bed” and “started 

having blackouts”).) 

 Witnesses such as Kiles’s probation officer, Ramon Mendoza, and the Yuma 

County Adult Detention Center nursing director at the time of Kiles’s arrest, Linda 

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Rautenberg, had similarly useful information.64 (See, e.g., ROA 225 Ex. 48 at 2 

(noting that when Kiles was arrested, he weighed a measly 147.5 pounds); see also 

2006 Trial Ex. 169 at 2 (Mendoza reporting that just after arrest, Kiles had said he 

was on crack cocaine, alcohol, and heroin at the time of the offense).) And counsel 

should certainly have interviewed Janell Hawkins to appreciate fully how poorly 

Kiles was functioning at the time of the crime. As she had previously stated, “I 

know better than anyone what drugs do to Alvie and me. It makes us crazy.” (ROA 

225 Ex. 39 at 8.) As sustained alcohol and drug use both causes and exacerbates 

impulsivity, such information was important for counsel to know when evaluating 

the viability of the impulsivity defense. See Bemore, 788 F.3d at 1164-66. 

The fact that many of these witnesses spoke to first state post-conviction 

counsel and were willing to provide affidavits suggests that (1) the witnesses could 

be located, and (2) attempts to speak with them would have been fruitful. (See, e.g., 

ROA 225 Ex. 39 at 8.) But counsel appears to not have interviewed any lay witness, 

save some witnesses noticed by the State.65 (See ROA 446 at 1–2.) 

 Finally, as part of a reasonable investigation, counsel should have made use 

of the two resources most easily available to them: previously collected records and 

their own client. First state post-conviction counsel had collected myriad records 

and materials concerning Kiles and his family, many of which had information 

relevant to an impulsivity defense. (See, e.g., ROA 225 Ex. 5; ROA 225 Ex. 36.) 

Once again, it does not appear that counsel were aware of the contents of the vast 

majority of these records and accordingly performed deficiently. See Rompilla, 545 

 

64 Kiles also told Mendoza shortly after being arrested that he had not killed the 

children, so Mendoza’s testimony would have been useful on multiple fronts. (See 

2006 Trial Ex. 169 at 2.) 

65 Counsel also should have interviewed witnesses, like Louie Gomez, who could 

have corroborated Kiles’s testimony that he was in Gunnel’s apartment with two 

other men. Clark was notified well before trial that Gomez had relevant 

information. 

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U.S. at 383–84 (counsel deficient for failure to review easily accessible known to 

have critical information); Bemore, 788 F.3d at 1165–66 (counsel deficient for 

failing to investigate readily available evidence). Additionally, nobody had more 

information pertaining to the crime, the days around the time of the crime, and 

possible defenses than Kiles himself. As discussed in detail previously, counsel did 

not develop a relationship with the client that was adequate to ensure that Kiles was 

willing and able to communicate with them. See Claim 1, supra. Because of that 

and counsel’s lack of interest in Kiles’s thoughts, counsel were unable to avail 

themselves of the beneficial information they had in determining strategy. See 

United States v. Tucker, 716 F.2d 576, 582 (9th Cir. 1983) (“Adequate consultation 

between attorney and client is an essential element of competent representation of 

a criminal defendant. . . . While the amount of consultation will depend on the facts 

of each case, the consultation should be sufficient to determine all legally relevant 

information known to the defendant.”); see also, e.g., Correll v. Ryan, 539 F.3d 

938, 943 (9th Cir. 2008); 1989 ABA Guideline 11.4.1(D)(2) (requiring counsel to 

seek information from client regarding events giving rise to charges, as well as 

regarding client’s mental state). 

 In sum, counsel failed to conduct an adequate investigation before making 

strategy decisions for Kiles’s guilt-phase proceedings. Accordingly, counsel’s 

decisions were uninformed, unreasoned, and unworthy of any sort of deference. See 

Wiggins, 539 U.S. at 521; Bemore, 788 F.3d at 1162–69. Even if counsel’s strategy 

was reasonable in the abstract, “it was not reasonable in this case because counsel 

were not fully aware of their options.” Sowell, 663 F.3d at 794. That counsel’s 

strategy—to try to establish intoxication and heat-of-passion manslaughter in the 

death of Gunnel—was legally and factually not viable only emphasizes the 

unreasonableness of counsel’s actions. 

 If counsel had instead conducted a constitutionally adequate investigation, 

they would have had access to a wealth of information regarding the accuracy of 

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the State’s forensic evidence and the applicability of a court-approved alternative 

defense to premeditation. With such information in hand, counsel could have made 

an informed and reasoned decision as to when to discontinue their investigation and 

as to which defense to pursue at trial. See Wiggins, 539 U.S. at 521. But counsel did 

not do so, and the fact that counsel may have performed capably at some points 

during trial does not excuse their foundational failure to investigate. See Rogers v. 

Israel, 746 F.2d 1288, 1295 n.5 (7th Cir. 1984) (“The fact that trial counsel’s 

performance was otherwise admirable would not excuse the failure to conduct a 

proper investigation.”); see also Moore v. United States, 432 F.2d 730, 739 (3d Cir. 

1970 (en banc); ABA Defense Standard 4-4.1 cmt. (“The effectiveness of advocacy 

is not to be measured solely by what the lawyer does at the trial; without careful 

preparation, the lawyer cannot fulfill the advocate’s role.”). Here, counsel failed to 

conduct a reasonable investigation and, as a consequence of that abridged 

investigation, adopted a faulty strategy. Counsel thus performed deficiently under 

Strickland. 

3. Trial counsel’s deficient performance prejudiced Kiles. 

As discussed previously, defense counsel went into trial equipped with at 

best a half-baked defense against the charge of first-degree murder for the death of 

Gunnel. Nearly the only evidence proffered by the defense regarding Gunnel’s 

death was Kiles’s testimony—everything hinged on whether the jury found his 

account credible.66 Practically speaking, the jury not only needed to believe Kiles, 

but also needed to find that his account gave rise to reasonable doubt as to 

premeditation.67 For that, counsel sought to rely on evidence of intoxication and 

 

66 As a further consequence of this reliance on Kiles’s testimony alone, nearly all 

of the trial testimony focused on the deaths of Shemaeah and LeCresha. That the 

defense spent relatively little time on Gunnel’s death likely made it seem to jurors 

as though defense counsel recognized the uphill battle they faced on the resultant 

charge. 

67 While the burden of proof for premeditation remained on the State, the fact that 

Kiles testified that he killed Gunnel by beating her with a tire jack effectively meant 

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heat of passion. But, while other witnesses mentioned Kiles’s drug use (see, e.g., 

Tr. July 12, 2000 at 200–01; Tr. July 13, 2000 at 61), only Kiles testified about his 

drug use on the day of the crime (see Tr. July 17, 2000 at 157–58, 177, 209). And 

even he hardly alluded to the effects of that drug use—that is, to why his drug use 

scrambled his thinking and, relatedly, his ability to premeditate. (See generally Tr. 

July 17, 2000 at 151–222.) Similarly, Kiles’s testimony offered little basis for the 

jury to understand why Gunnel’s actions—just two slaps—roiled Kiles so much 

that he grabbed the tire jack in a heat of passion and reacted without thinking. (See 

generally Tr. July 17, 2000 at 151–222.) 

Trial counsel were thus asking the jury to believe Kiles and to find that there 

was no premeditation despite having presented no evidence explaining why Kiles’s 

addictions might have affected his ability to premeditate or why he was in such a 

heat of passion that he did not premeditate. Counsel were further doing so despite 

the fact that Kiles, as the State pointed out, was not entitled under state law to have 

the court instruct the jury that voluntary intoxication could negate premeditation.68

See Rankovich, 765 P.2d at 524. As a result, the jury had little reason to conclude 

that the State had not proven premeditation beyond a reasonable doubt. That, in 

combination with Kiles’s testimony that he killed Gunnel, led directly to the firstdegree murder conviction. See Yun Hseng Liao v. Junious, 817 F.3d 678, 694 (9th 

Cir. 2016) (“[O]ur precedent recognizes that prejudice is established when . . . 

counsel’s error left the defense with weaknesses that were exploited by the 

prosecution.” (internal quotation marks omitted).) 

If counsel had conducted an adequate investigation, however, the defense 

could have taken on an entirely different hue. Counsel could have submitted to the 

 

that the defense needed to undercut the State’s proffered evidence of premeditation 

to avoid the first-degree murder conviction. 

68 Powell announced during the State’s closing that “[a]nything about intoxication 

does not apply when you consider first-degree murder. That is all there is to it. . . . 

That’s the law.” (Tr. July 19, 2000 at 42.) 

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jury that Kiles had an impulsive nature due to brain dysfunction, see Christensen, 

628 P.2d at 582–84, which was partly due to and partly exacerbated by his 

addictions. Instead of gambling entirely on Kiles’s ability to persuade the jury, 

counsel could have offered a psychiatrist or psychologist to explain the nature of 

Kiles’s impulsivity and how his thought processes were consequently impaired. See 

id. (allowing expert testimony to explain a defendant’s impulsive nature); (see also, 

e.g., Tr. Feb. 21, 1996 at 167–21; Tr. May 8, 2006 at 33–34). Counsel could have 

presented a neuropsychologist and a neuroimaging expert to show to the jury that 

Kiles had demonstrable markers of brain damage, trauma, and other known causes 

of impulsivity, as well as that his performance on testing made clear his struggles 

with impulsivity. (See, e.g., PFR2 Dkt. 27 Ex. 24 at 1–2; PFR2 Dkt. 28 Ex. 25 at 

7.) In addition, counsel could have had a pharmacologist or comparable expert lay 

out for the jury the effect of Kiles’s addictions on his tendency toward impulsivity 

and thought processes around the time of the crime. (See, e.g., PFR2 Dkt. 28 Ex. 25 

at 5.) Lay-witness testimony could have corroborated that expert testimony about 

Kiles’s impulsivity, its causes, and its effects. (See, e.g., ROA 225 Ex. 44 at 1; ROA 

225 Ex. 46 at 1.) 

While an impulsivity defense could have opened the door for the State to 

introduce parts of Kiles’s criminal history, even such testimony could have been 

used by the defense to further illustrate Kiles’s impulsivity. Indeed, much of Kiles’s 

criminal history is proof of his impulsive nature. (See, e.g., PFR2 Dkt. 27 Ex. 24 at 

1–2.) Further, such evidence would have given Kiles’s experts an opportunity to 

explain that even actions that superficially seem reflective may well be impulsive 

and done without prior thought to consequences.69 (Tr. May 8, 2006 at 36–37 (Dr. 

Globus detailing how Kiles’s actions in a 1984 fight might well have been 

 

69 Any argument that opening the door to Kiles’s criminal history would have 

increased the likelihood of conviction in Gunnel’s death falls flat, given that Kiles 

testified that he was responsible for her death and had no chance of escaping a 

conviction. 

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impulsive, even though Kiles claimed he “sat down and thought” before responding 

to assault against him).) 

Overall, then, defense experts on impulsivity, corroborated appropriately by 

lay witnesses, would have given the jurors what they were missing: a compelling 

explanation as to why Kiles’s actions were, given his nature, inconsistent with 

premeditation. 

An even minimally adequate investigation would also have allowed defense 

counsel to confront head-on critical aspects of the State’s forensic case. Had counsel 

retained a pathologist, they could have persuasively challenged the State’s claim 

that the assault against Gunnel was prolonged—and thus more likely 

premeditated—because Gunnel had a defensive wound. Through a blood-spatter 

expert, counsel could have conveyed to the jury that the forensic evidence strongly 

indicated that Gunnel quickly went down once attacked, as well as that several of 

Tom Bevel’s key conclusions were unsound. (See ROA 225 Ex. 79 at 4.) In so 

doing, defense counsel could have decimated the testimony of an expert whom the 

State lionized as a centerpiece of its case. Finally, a crime-scene management expert 

could have helped trial counsel attack the reasonableness of key aspects of the 

crime-scene investigation. Such information both would have given the jury reason 

to view the State’s evidence with great skepticism and would have highlighted the 

absence of reliable physical evidence of premeditation. See Elmore, 661 F.3d at 870 

(“With investigation, the jury undeniably would have seen a drastically different—

and significantly weaker—prosecution case.”). 

Critically, an adequate investigation would have allowed counsel to present 

evidence that both corroborated and provided critical context for Kiles’s testimony. 

The Ninth Circuit has repeatedly found that the failure to corroborate the 

defendant’s testimony, when possible to do so, is prejudicial. For example, in Riley 

v. Payne, counsel was ineffective for failing to call a witness who could have 

corroborated portions of the defendant’s account of self defense. 352 F.3d 1313, 

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1319–20 (9th Cir. 2003) (finding prejudice when the witness’s “testimony would 

have been consistent with [the defendant’s] account and would have created more 

equilibrium in the evidence presented to the jury” (internal quotation marks 

omitted).). Similarly, the court found Strickland prejudice in Brown v. Myers, when 

counsel neglected to have several witnesses testify who could have “buttressed [the 

defendant’s] account on [a] crucial point.” 137 F.3d 1154, 1157–58 (9th Cir. 1998); 

see also, e.g., Bennett, 407 F. App’x at 215 (“Because [the defendant] took the 

stand, it was critical to have any objective physical and forensic evidence to support 

his version.”). Accordingly, while Kiles’s testimony would still have been the 

linchpin of the defense’s case, corroborating that testimony with forensic evidence 

and with evidence of his impulsivity would have bolstered the defense case 

immeasurably. 

 Because counsel failed to adequately investigate, they lost the opportunity to 

present a legally sound, reasonable defense to first-degree murder that was 

compelling because it both undermined the State’s forensic evidence and explained 

why Kiles’s character for impulsivity undercut premeditation. And, because 

counsel had instead opted for a legally and factually problematic defense to the 

first-degree murder charge for Gunnel’s death, counsel allowed that charge—and 

Gunnel’s death—to get lost in the stream of information about the remaining 

murder charges. The result was a breakdown in the adversarial system, sufficient to 

undermine confidence in the conviction. See Strickland, 466 U.S. at 687. In this 

case, all that is needed to undermine confidence is a reasonable probability that at 

least one juror would have rejected first-degree murder in favor of a lesser-included 

offense, such as second-degree murder. See Jennings v. Woodford, 290 F.3d 1006, 

1019 (9th Cir. 2002); see also Strickland, 466 U.S. at 694 (declaring that a showing 

of “a reasonable probability” is a lesser standard than “a preponderance of the 

evidence”). 

 Here, the jurors could have heard an entirely different story than the one 

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presented. They could have heard that key aspects of the State’s forensic case were 

exaggerated or wholly unsupportable. They could have heard that the little physical 

evidence offered regarding Gunnel’s killing did not suggest, let alone prove, that 

the killing was premeditated. They could have learned that Kiles suffered from 

brain dysfunction and, consequently, impulsivity, which bore heavily upon whether 

he premeditated the killing. Importantly, such powerful evidence that Kiles did not 

premeditate Gunnel’s death would not have been lost or obscured in the grand 

scheme of the trial. If the jury had been offered this evidence, then “it might 

nonetheless have convicted [Kiles of premeditated first-degree murder]. . . . But 

there is at least a reasonable probability that it would not have done so.” Thomas v. 

Chappell, 678 F.3d 1086, 1098 (9th Cir. 2012). 

D. Counsel were ineffective for failing to object to Kiles’s shackling. 

Kiles’s counsel were deficient for failing to object to Kiles’s shackling, as 

well as for failing to ensure that Kiles’s restraints were not visible to the jury, and 

counsel’s deficient performance prejudiced Kiles. 

Throughout guilt-phase proceedings, Kiles was forced to wear a leg brace—

designed to lock up if a defendant moved too quickly—and ankle shackles. Kiles 

had to hold the leg brace in place when he was walking, including to the witness 

stand to testify, to prevent it from locking up as he moved. Multiple jurors saw 

and/or heard Kiles’s shackles, and at least one juror noticed Kiles’s odd gait, 

attributable to the leg brace. 

However, Kiles had a right under the Due Process Clause not to be tried 

wearing shackles unless there were no acceptable alternatives. The Supreme Court 

has “defined shackling as ‘the sort of inherently prejudicial practice that . . . should 

be permitted only where justified by an essential state interest specific to each 

trial.’” Hedlund v. Ryan, 854 F.3d 557, 568 (9th Cir. 2017) (footnote omitted) 

(quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)). 

Counsel had a duty to protect Kiles from the inherent prejudice of shackling, 

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but failed to do so. See Roche v. Davis, 291 F.3d 473, 483 (7th Cir. 2002) (holding 

that counsel’s performance was deficient in failing to object to client’s shackling 

and in failing to ensure that shackles were not visible to the jury); see also 

Strickland, 466 U.S. at 688. Preliminarily, counsel failed to object when the court 

neglected to inquire into whether there were compelling circumstances to justify 

the use of physical restraints. Spain v. Rushen, 883 F.2d 712, 716 (9th Cir. 1989). 

In failing to conduct that individualized inquiry, the court committed constitutional 

error. See id.; see also infra, Claim 7. By extension, counsel performed deficiently 

in failing to ensure that Kiles’s due-process rights were vindicated.70 See Roche, 

291 F.3d at 483. Then, having failed to object to the unjustified use of restraints, 

counsel did not ensure that the jury could not see Kiles’s physical restraints.71 In 

that way, too, counsel performed deficiently. See id.

The prejudice arising from shackling—and the ways in which it undermined 

Kiles’s rights—is manifold. First, shackling compromises the defendant’s right to 

a fair trial by (1) crippling the presumption of innocence, and (2) denying the 

defendant an impartial jury. See Illinois v. Allen, 397 U.S. 337, 344–45 (1970); 

Estelle v. Williams, 425 U.S. 501, 504–05 (1976) (recognizing shackles as a 

“constant reminder of the accused’s condition . . . [that] may affect a juror’s 

judgment” and are “so likely to be a continuing influence throughout the trial that 

. . . an unacceptable risk is presented of impermissible factors coming into play”); 

 

70 Had counsel objected and forced the trial court to conduct the constitutionally 

requisite inquiry, the trial court would likely have determined that less-restrictive 

alternatives were appropriate. The trial court had a lot of evidence to consider in its 

individualized review. By the time of trial, Kiles had spent 11 years in jail and 

prison, and his record was exemplary. (See Tr. Apr. 27, 2006 at 6, 31–32 (prisonoperations expert testifying that Kiles had zero infractions from 1990 through early 

1998 and that such a spotless record was “baffling . . . I have never seen anything 

like this”).) 

71 Kiles may also have been wearing a stun belt. If that was so, then that restraint, 

even though not visible to the jury, only exacerbated the problems caused by Kiles’s 

visible restraints. See Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir. 2003). 

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see also Deck v. Missouri, 544 U.S. 622, 633 (2005) (noting that shackles imply 

that the court considers the defendant dangerous, which is “nearly always a relevant 

factor in jury decisionmaking” in a capital case). Second, restraints inhibit the 

defendant, thereby impeding his ability to assist counsel in his own defense, which 

is critical to his ability to present a meaningful defense. See id. at 631–32 (“The use 

of physical restraints diminishes that right.”). Shackling has been found to impede 

easy communication with counsel. See Allen, 397 U.S. at 344. Physical restraints 

can further “confuse and embarrass the defendant, thereby impairing his mental 

faculties; and they may cause him pain.” Duckett v. Godinez, 67 F.3d 734, 747–48 

(9th Cir. 1995) (quoting Spain, 883 F.2d at 720–21). Third, “the use of [shackling] 

is itself something of an affront to the very dignity and decorum of judicial 

proceedings.” Allen, 397 U.S. at 344. 

All of these forms of prejudice plagued Kiles’s guilt-phase proceedings, 

rendering counsel ineffective for failing to protect Kiles’s rights. See State v. 

Gomez, 123 P.3d 1131, 1141 (Ariz. 2005) (remanding for new sentencing when 

shackling of defendant during capital-sentencing proceedings was unjustified and 

prejudicial). The fragility of the presumption of innocence and the crucial need for 

an impartial jury were only heightened in Kiles’s case, where at least one juror was 

aware that Kiles had previously been convicted of the crimes at issue and multiple 

jurors had been exposed to media about the crimes and Kiles’s legal proceedings. 

In a case involving such brutal crimes, when jurors were able to see and hear Kiles’s 

restraints, the jurors were able to quickly and reasonably infer that the court had 

already deemed him a danger. See Deck, 544 U.S. at 633. As a result, the 

presumption of innocence was vitiated. See Spain, 883 F.2d at 721 (recognizing 

that shackling can “revers[e] the presumption of innocence”). Further, the restraints 

limited Kiles’s ability to communicate freely with his counsel and undermined the 

dignity and decorum of the judicial proceedings. Given the degree of prejudice on 

multiple fronts from the visible shackles, there is a reasonable probability that, 

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absent counsel’s failures, at least one juror would have voted differently. See 

Strickland, 466 U.S. at 694.

E. Counsel rendered ineffective assistance during the defense’s 

opening statement. 

A criminal defendant has the right to effective assistance of counsel during 

the defense’s opening statement. See, e.g., Wilson v. Mazzuca, 570 F.3d 490, 502–

07 (2d Cir. 2009) (finding counsel ineffective in part due to failures during opening 

statement). However, Clark’s opening statement worked to Kiles’s detriment in a 

number of ways. See Strickland, 466 U.S. at 688. 

Clark undermined the defense’s credibility from the outset, by making 

promises he did not keep. See, e.g., Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 

1988) (“[L]ittle is more damaging than to fail to produce important evidence that 

ha[s] been promised in an opening.”). After lauding the State’s blood-spatter 

evidence as a “forensic fact in this case” that would be “foolish” to challenge72 (Tr. 

July 10, 2000 at 35), Clark guaranteed the jury that the DNA and blood-spatter 

evidence would establish that Gunnel died in the leather chair: “[T]he DNA, the 

blood spatter and Mr. Kiles’ testimony will all tell that that’s where [Gunnel] 

expired at, in the living room, in that chair.” (Tr. July 10, 2000 at 46.) That never 

came to pass. The location where Gunnel died was critical to the defense, as it spoke 

both to premeditation and to the credibility of Kiles’s narrative. But, after having 

promised this “very scientific” support for Kiles’s testimony (Tr. July 10, 2000 at 

34), the defense failed to come through. The DNA evidence did not establish that 

Gunnel died in the chair, because the blood on the chair was never tested by the 

DNA analyst. (See Tr. July 12, 2000 at 114–16 (DNA analyst listing items with 

bloodstains that he tested).) Similarly, no blood-spatter evidence established that 

Gunnel died in the chair, because defense counsel neglected to elicit such evidence 

 

72 That the defense was, because of counsel’s inadequate investigation, vouching 

for unreliable blood-spatter evidence was an independent problem. 

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when questioning the State’s expert.73 (See Tr. July 14, 2000 at 30–50, 55–59.) 

 Clark then, for no discernible reason, told the jury the following: 

[Kiles] and his friends . . . decide to do what they have done 

in the past, and that’s—they’re going to shoplift some 

Circle K’s. Evidently, it’s an easy thing to do. They steal 

some cigarettes and they steal some liquor. They take the 

cigarettes and trade them for some more cocaine. They do 

this three times. 

(Tr. July 10, 2000 at 43–44.) Even assuming this information were true, none of it 

came into evidence at trial. As counsel knew or should have known, the only 

witness noticed by the State who could potentially have testified to these matters 

was Kale Johnson. (See ROA 446 at 1–2.) Johnson, however, had committed to 

saying that he did not leave his aunt’s apartment on the day in question. (See Tr. 

July 14, 2000 at 136–37.) And the State could not produce such “other crimes” 

evidence during Kiles’s cross-examination. See Ariz. R. Evid. 404(b). The defense 

thus announced to the jury that their client had spent the day of the crime robbing 

stores for money for drugs. In doing so, counsel undermined Kiles’s credibility for 

no reason whatsoever, even though the case hinged on Kiles’s testimony. 

In sum, then, defense counsel promised corroboration for a key aspect of 

Kiles’s testimony—one going to whether Kiles premeditated Gunnel’s death—and 

failed to deliver. In addition, counsel affirmatively undercut Kiles’s credibility by 

 

73 Clark made other promises the defense failed to keep. For example, he began his 

opening by insisting that attorneys “don’t come into these rooms at this point in 

time and ask questions we don’t already know the answers to.” (Tr. July 10, 2000 

at 29.) But defense counsel were repeatedly stumped when State’s witnesses failed 

to respond to questions as anticipated. As another example, Clark announced, “I’ll 

tell you now that a great number of these [State’s] witnesses will be recalled in the 

defense’s case in chief. . . . [T]hat’s going to happen.” (Tr. July 10, 2000 at 37.) Of 

the State’s twenty or so witnesses, the defense recalled only two. (See Tr. July 17, 

2000 at 127, 145.) In doing so after promising “a great number” of witnesses, 

counsel intimated to the jury that the defense had less to offer—that it was weaker—

than anticipated. See, e.g., Williams v. Woodford, 859 F. Supp. 2d 1154, 1173 (E.D. 

Cal. 2012).

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alerting the jury that Kiles had been robbing stores for money for drugs, on which 

point there was no testimony whatsoever. Given the centrality of Kiles’s testimony 

to the case as presented, these errors prejudiced Kiles. See, e.g., United States v. 

Gonzalez-Maldonado, 115 F.3d 9, 15 (1st Cir. 1997) (“A defendant’s opening 

statement prepares the jury to hear his case. If the defense fails to produce promised 

expert testimony that is critical to the defense strategy, a danger arises that the jury 

will presume . . . the defense is flawed.”); Cunningham, 704 F.3d at 1168 

(Pregerson, J., concurring in part and dissenting in part); see also Strickland, 466 

U.S. at 694. 

F. Counsel were ineffective for failing to effectively cross-examine 

crucial State’s witnesses on matters relating to whether Gunnel’s 

death was premeditated. 

Trial counsel likewise had a duty under the Sixth Amendment to test the 

State’s case by adequately cross-examining the State’s witnesses on points critical 

to the defense. See Crawford v. Washington, 541 U.S. 36, 61 (2004) (recognizing 

the “testing [of evidence] in the crucible of cross-examination” as crucial 

constitutional guarantee of reliability); see also, e.g., Richey, 498 F.3d at 362–64 

(holding counsel ineffective in part for failure to prepare sufficiently to crossexamine State’s witnesses). Again, trial counsel’s strategy was to have Kiles admit 

that he killed Gunnel, but then to convince the jury that the crime was not 

premeditated and therefore not first-degree murder. (Tr. July 10, 2000 at 39–40.) 

Indeed, counsel made a point during closing argument of dismissing the State’s 

theory that the attack on Gunnel started in the bedroom and moved to the living 

room—a theory suggestive of a prolonged attack and therefore of premeditation. 

(Tr. July 19, 2000 at 51.) Having committed to this approach, though, counsel had 

an obligation to pounce on every opportunity to undercut the State’s case for 

premeditation. Instead, counsel missed critical chances to effectively cross-examine 

several of the State’s witnesses, thereby unnecessarily ceding key points to the 

prosecution. 

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 For example, as laid out above, counsel failed to cross-examine two of the 

State’s forensic experts on key points. At no point during the cross-examination of 

Tom Bevel did counsel touch on the blood-stain evidence in the living room. (See

Tr. July 14, 2000 at 30–50, 55–59.) However, had counsel done so, counsel could 

have elicited from Bevel that the low-to-the-ground blood spatter and castoff in the 

living room suggested that Gunnel was not standing for any blow that produced 

such spatter. (Tr. Mar. 27, 2006 at 65–66, 71.) Counsel could moreover have had 

Bevel testify that the blood stain in the leather chair was consistent with the blood 

source (i.e., Gunnel’s head injury) being low to the chair cushion. (Tr. Mar. 27, 

2006 at 65–66, 71.) Counsel could even have elicited from Bevel that he had no 

way of knowing whether the ratchet was originally in the east bedroom and that it 

could have been moved there after the killings. (Cf. Tr. Mar. 27, 2006 at 113–14.) 

This testimony—much of which was elicited during the aggravation phase—would 

have corroborated Kiles’s account of the attack on Gunnel, including that it was not 

premeditated. (Tr. July 17, 2000 at 165–66); see also Bennett, 407 F. App’x at 215. 

Similarly, instead of blindly accepting Dr. Mallon’s assertion that Gunnel 

exhibited “evidence of a defensive wound” (Tr. July 13, 2000 at 99), counsel could 

have confronted Dr. Mallon with his far-less-definitive statement at the 1989 trial 

that Gunnel’s forearm wound merely could be a defensive wound.74 (Tr. Dec. 12, 

1989 at 8.) Clearly counsel was interested in impeaching Dr. Mallon with his prior 

testimony, as she did so on a different issue. (See Tr. July 13, 2000 at 106–07.) But 

the failure to cross-examine him about the defensive wound marked another missed 

opportunity to buttress Kiles’s version of events.75 See Nixon v. Newsome, 888 F.2d 

 

74 Relatedly, counsel could have confronted Dr. Mallon with his 1989 testimony 

that he could not say whether Gunnel was conscious for any particular blow. (See 

Tr. Dec. 12, 1989 at 15 (testifying that “it would be speculation” to say whether 

Gunnel was conscious after the first blow).) 

75 Of course, as discussed previously, counsel should have retained experts to help 

them understand and navigate the State’s experts’ conclusions. Even lacking such 

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112, 114–15 (11th Cir. 1989) (counsel ineffective for failing to cross-examine 

witness on the “crucial discrepancies” between her testimony at two trials).

 Counsel’s failure to effectively cross-examine extended to lay witnesses. As 

an example, counsel did not adequately cross-examine Larry Hawkins using the 

affidavit he had provided in 1994, his 1989 testimony, or other impeachment 

material. (ROA 1189 at 6.) Hawkins’s Silent Witness Letter and testimony were 

key evidence of premeditation (see, e.g., Tr. July 13, 2000 at 32–35), and counsel 

missed chances to undermine this testimony. Counsel could have asked Hawkins 

about the following sworn statement he made in 1994: “Alvie came to my house 

the day of the homicides, as I testified in court. He was not himself. He had a crazed 

look in his eyes and was rambling and at times, incoherent. I don’t know that 

anything he told me that day was accurate.” (PFR2 Dkt. 20 Ex. 2 at 2–3.) 

Confronting Hawkins with that prior attestation would have undermined the value 

of his testimony about what Kiles had said after the homicides. Counsel could 

further have impeached Hawkins with his 1989 testimony about Kiles’s alcohol 

problem and that Kiles was “shooting cocaine” when he spoke to Hawkins on 

February 10, 1989. (Tr. Dec. 13, 1989 (Hawkins testimony) at 27–28.) And, 

because the State framed Hawkins as Kiles’s confidant from its opening statement 

onward (see, e.g., Tr. July 10, 2000 at 24), counsel could have elicited testimony

from Hawkins that he and Kiles had a falling out when Hawkins beat up Kiles’s 

sister (see PFR2 Dkt. 21 Ex. 3 at 34). Instead, counsel failed to counter testimony 

regarding premeditation on which the State relied heavily. See Reynoso v. Giurbino, 

462 F.3d 1099, 1114 (9th Cir. 2006) (counsel ineffective for failing to investigate 

material for cross-examination). 

 Counsel could likewise have impeached Kale Johnson with his August 1994 

affidavit. (See ROA 1189 at 39–40; ROA 225 Ex. 45 at 1–3.) In that affidavit, 

 

help, though, counsel could have better fashioned their attacks on these experts 

during cross-examination. 

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Johnson attested that when he returned with Kiles to Gunnel’s apartment, 

Alvie was not bragging about what he had done at all. He 

was really freaked out and upset. Alvie was very high on 

drugs and alcohol, and he was staggering. . . . He started 

down the hallway, but because he was so messed up he 

accidentally stumbled over Valerie’s body. . . . He did not 

deliberately step on Valerie’s face, and he did not step on 

her face to prove that she was dead. 

(ROA 225 Ex. 45 at 2.) While Clark attempted to impeach Johnson’s testimony at 

trial, Clark did not use this affidavit. Instead, Clark highlighted Johnson’s April 

2000 unsworn statement to defense counsel, as well as Johnson’s 1989 testimony, 

in which Johnson testified that Kiles stepped on Gunnel on purpose to show that 

she was dead. (Tr. July 14, 2000 at 165–66.) That counsel failed to use this affidavit 

for impeachment was not strategic, as much of counsel’s guilt-phase focus was on 

undercutting Johnson’s testimony. 

 Finally, counsel failed to adequately cross-examine certain law-enforcement 

witnesses. Perhaps most importantly, counsel did not ask Rodgers, who was the 

lead investigator on the case, whether the evidence supported the State’s theory that 

the attack on Gunnel started in the bedroom.76 Had counsel done so, he would 

presumably have testified as he did during the 2006 aggravation-phase crossexamination: “[A]fter things started, I don’t think [Gunnel] ever made it to the east 

bedroom.” (Tr. Apr. 3, 2006 at 100.) He could have elaborated that the ratchet, 

along with Gunnel’s tooth fragment and hair, found in the east bedroom could have 

been transferred there—there was no way to tell from the physical evidence whether 

the ratchet was used in the bedroom. (Tr. Apr. 3, 2006 at 99–100.) The State harped 

on this theory that the attack on Gunnel started in the bedroom; it came up time and 

time again in the State’s closing as the basis for premeditation. Had Rodgers, the 

State’s crime-scene management expert (ROA 446 at 2), obliterated that theory, the 

 

76 It is unclear whether defense counsel interviewed Rodgers prior to trial. 

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State’s case for premeditation would have been in shambles. Counsel were 

ineffective for missing—with no justification—such a valuable opportunity to 

strike at the core of the State’s case.77 See Reynoso, 462 F.3d at 1099; Richey, 498 

F.3d at 362–64. 

 Counsel’s failures with respect to cross-examination were not based on any 

informed, reasoned decisions, but on a lack of preparation and investigation. Had 

counsel effectively challenged the testimony of these key State witnesses, there is 

a reasonable probability that the jury’s verdict would have been different. See 

Strickland, 466 U.S. at 688, 694. 

G. Counsel were ineffective for stipulating to the admission of 

hearsay statements from Gunnel at the guilt-phase proceedings. 

 As part of counsel’s duty to test the State’s case, counsel were required to 

contest the admission of unreliable hearsay. See Pearce v. Nooth, No. 17-35326, 

2018 WL 3639534, at *2 (9th Cir. Aug. 1, 2018) (finding counsel ineffective for 

failing to make meritorious hearsay objection). Kiles’s counsel were ineffective for 

failing to object to such hearsay. (See ROA 1189 at 37–39.) 

 Before Kiles’s guilt-phase proceedings, defense counsel—specifically, 

VanDreumel—made several stipulations in a letter to the State. (See ROA 497.) 

One of those stipulations was as follows: 

Next, consistent with the doctrine of the law of the case, 

[the defense] will not challenge the admissibility of Valerie 

Gunnel’s statements to ImoJean [sic] Kiles reference her 

needing money because our client took her food stamps. 

Similarly, we will not challenge the admissibility of Sandra 

Mercado’s claim that Valerie told her that she (Valerie) 

 

77 Further, if the defense was aware that Officer David Sherman, Kiles’s arresting 

officer, had previously falsified a urine test, counsel should have raised that 

information on cross-examination. Although Sherman did not testify on matters 

related to premeditation, casting his credibility into question could have affected 

the jurors’ perception of the State’s law enforcement witnesses. And, if the State 

did not disclose this impeachment information about Sherman to the defense, that 

withholding of material violated Kiles’s rights. 

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didn’t have any money, and that she (Valerie) wanted our 

client to move out, and that our client responded that the 

only way he would move out were if she (Valerie) called 

the police. Please know that we are not stipulating that 

these witnesses[’] claims regarding Valerie’s statements 

are truthful, and we intend to challenge the testifying 

witnesses thereon. We simply understand that those 

statements will be admitted.

(ROA 497 at 3.) At trial, Imojean Kiles and Sandra Brown (formerly Mercado) 

testified to these and other hearsay statements from Gunnel pursuant to counsel’s 

stipulation. (See, e.g., Tr. July 11, 2000 at 32 (Imojean Kiles testifying that Gunnel

said that Alvie Kiles had taken her food stamps); Tr. July 12, 2000 at 9–10 (Brown 

testifying that Gunnel complained that she wanted Kiles to leave her apartment and 

that she was going to throw him out); Tr. July 12, 2000 at 11 (Brown testifying that 

Gunnel believed Kiles had taken her purse).)78

 Preliminarily, while counsel claimed to be deferring to the law-of-the-case 

doctrine, counsel later argued against the doctrine on a matter related to aggravating 

circumstances. (See ROA 756 at 2–5.) Accordingly, counsel’s stated justification 

for the stipulation is untenable.79

 Gunnel’s statements—particularly that she needed money because Kiles had 

taken her food stamps and that he would only move out if she called the police on 

him—were inadmissible hearsay. The statements were offered to prove the truth of 

 

78 At one point during Brown’s testimony, Clark objected to the hearsay. (Tr. July 

12, 2000 at 9.) There was an off-the-record bench conference (Tr. July 12, 2000 at 

9), at which point Clark was presumably reminded that the defense had stipulated 

to the admission of hearsay testimony. If, instead, the defense withdrew their 

stipulation, objected to the hearsay, and were overruled by the trial court, the 

constitutional error lies with the trial court for allowing the admission of unreliable 

hearsay in violation of Kiles’s rights to due process, confrontation, and a fair trial. 

Regardless, defense did not object to Imojean Kiles’s relaying of hearsay (see Tr. 

July 11, 2000 at 32), and the failure of counsel to ensure a complete record of this 

important discussion regarding hearsay was ineffective, see infra, Claim 16. 

79Moreover, the hearsay issues were not raised to the Arizona Supreme Court during 

Kiles’s first direct-appeal proceedings. See State v. Kiles, 857 P.2d 1212 (Ariz. 

1993). 

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the matters asserted. Moreover, there was no dispute that, for example, Gunnel was 

angry with Kiles at the time of the crime. Because these statements do not fall within 

exceptions to the prohibition on hearsay under Arizona law, they were inadmissible. 

See, e.g., State v. Charo, 754 P.2d 288 (Ariz. 1988) (holding that hearsay from 

deceased victim to prove an unwitnessed prior bad act by the defendant was 

inadmissible); Ariz. R. Evid. 803. Accordingly, counsel were deficient in 

stipulating to their admission. See Pearce, 2018 WL 3639534, at *2. 

 Counsel’s failure to object was, moreover, prejudicial. The State relied on 

the hearsay in its closing, arguing that the jury should believe Brown’s testimony 

as to what Gunnel had said and, in turn, reject Kiles’s testimony. (See Tr. July 19, 

2000 at 25–26.) In particular, Gunnel’s hearsay statements made it harder for a jury 

to accept that her later fight with Kiles, if attributable to the fact that he took her 

food stamps, was the adequate provocation necessary for a finding of heat-ofpassion manslaughter. If the jury had not heard this hearsay, there is a reasonable 

probability that it would not have convicted Kiles of first-degree murder for 

Gunnel’s death. See Strickland, 466 U.S. at 694.

H. Counsel were ineffective for failing to object to the worst of the 

gruesome photographs repeatedly displayed at trial. 

 Despite the excessively disturbing nature of some of the photographs of the 

victims, Kiles’s counsel failed to object to their admission and repeated display at 

trial. That failure was particularly abject with respect to the photograph admitted 

into evidence of LeCresha Kirklin, Gunnel’s nine-month-old daughter. (See 2000 

Trial Ex. 72.) Because of the particularly haunting nature of that image, counsel’s 

failure to object to its admission at trial was ineffective. See Strickland, 466 U.S. at 

688, 694; see also, e.g., Duncan v. Henry, 513 U.S. 364, 366 (1995) (recognizing 

due-process violation when evidence is admitted that is so inflammatory as to 

prevent a fair trial); (ROA 1189 at 30–32). 

 Exhibit 72 from the 2000 trial showed LeCresha on an autopsy table, her skin 

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grossly discolored and speckled by her prolonged submersion in water. (See Tr. 

July 13, 2000 at 103.) The photograph showed her skin slippage and the erosion of 

her soft tissue—also attributable to the immersion (Tr. Dec. 12, 1989 at 10; Tr. July 

13, 2000 at 103), as well as bites and other marks from fish and aquatic animals (Tr. 

Mar. 20, 2006 at 26). LeCresha’s face appeared bloated, and at least one of her eyes 

appeared to have been lost when she was submerged. 

 Defense counsel knew or should have known how inflammatory the

photograph of LeCresha was. During Kiles’s first state post-conviction 

proceedings, multiple jurors from his 1989 trial had commented on how troubling 

the photographs were. (ROA 225 Ex. 49 at 1 (“I remember the case very well, 

particularly the gruesome photographs. I had nightmares for a long time after seeing 

them. [They] seemed unnecessary. The photographs really influenced the jury.”); 

ROA 225 Ex. 51 at 1 (“The photographs of the crime scene and the victims were 

particularly gruesome and upsetting.”).) Indeed, VanDreumel challenged the 

admission of Exhibit 72 and other graphic photographs in 2006, before the penalty 

phase, noting the photograph of LeCresha in particular “still bothers me, that 

photograph does.” (Tr. Mar. 20, 2006 at 26–27.) 

 As evidenced by the fact that counsel later challenged the photograph, 

counsel had no justification for failing to do so at the guilt phase. (See Tr. Mar. 20, 

2006 at 26–27.) VanDreumel even acknowledged that “perhaps, [the failure] was 

an error of some magnitude” on the defense’s part. (Tr. Mar. 20, 2006 at 35.) 

 Moreover, had counsel challenged the admission of Exhibit 72, they would 

have prevailed. Inflammatory photographs are inadmissible under Arizona Rule of 

Evidence 403 when they have little tendency to establish any issue in dispute in the 

case; in such cases, the photographs serve primarily to inflame the jury. State v. 

Bocharski, 22 P.3d 43, 56 (Ariz. 2001). Here, the photograph was not probative of 

any matter in dispute. The defense did not dispute the identity of the child, that she 

had died, her cause of death, or that she had been placed in the river. The defense 

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disputed only who caused LeCresha’s death, a matter on which the photograph shed 

no light whatsoever. Therefore, the photograph was inadmissible. Id. (recognizing 

that when defense does not contest the facts of which an inflammatory photograph 

is probative, the “prejudicial effect [of such a photograph] can be significant”).80

 Powell knew how disturbing—and potent—the image of the decomposed 

body of the infant was. (See Tr. July 12, 2000 at 61.) Even so, he displayed Exhibit 

72 for the jurors multiple times during the course of the guilt phase. (See Tr. July 

12, 2000 at 61; Tr. July 13, 2000 at 103.) The jurors were subjected to a deeply 

disturbing image that some continue to find haunting. Because of the power and 

inflammatory nature of such a photograph, its prejudice is not just limited to crimes 

against LeCresha; the photograph surely colored the jurors’ view of all of the 

evidence and affected all of the verdicts. Exhibit 72 was particularly prejudicial 

with respect to the child-abuse charges, as the photograph showed all sorts of 

horrifying damage to LeCresha’s body that occurred long after any alleged child 

abuse by Kiles. Seeing a child in that state, with the effects of the immersion of 

water, must have made a difference. Had the jury not been repeatedly shown Exhibit 

72, there is a reasonable probability that its verdicts would have been different. See 

Strickland, 466 U.S. at 694.

I. Counsel rendered ineffective assistance by failing to request 

critical jury instructions. 

Defense counsel failed to request several critical jury instructions; the court, 

accordingly, neglected to instruct the jury appropriately. Because counsel’s failure 

prejudiced Kiles with respect to his conviction for first-degree murder for the death 

of Gunnel and his convictions for child abuse, counsel provided ineffective 

assistance. See Strickland, 466 U.S. at 688, 694; see also Pirtle v. Morgan, 313 F.3d 

 

80 Even when the trial court ruled the photograph admissible for the aggravation 

phase, the court acknowledged that the calculus would be different at guilt-phase 

proceedings, where there would be greater prejudice. (See Tr. Mar. 20, 2006 at 38.) 

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1160, 1162 (9th Cir. 2002) (deeming counsel ineffective for failing to request a 

guilt-phase instruction on diminished capacity). 

As Kiles testified that he killed Gunnel, the issue of premeditation—the 

difference between first-degree murder and second-degree murder—was pivotal. 

(See Tr. July 19, 2000 at 92–93.) Counsel thus had an absolute duty to ensure that 

the jury was properly instructed on premeditation. (See ROA 1189 at 42–45); see 

also Pirtle, 313 F.3d at 1162 (instructions relating to premeditation were crucial 

when “the only issue in dispute was whether [the defendant] acted with 

premeditation). The court instructed the jury as follows: 

Premeditation means the defendant acts with the 

knowledge that he will kill another human being when such 

intention or knowledge proceeds [sic] the killing by a 

length of time to permit reflection. An act is not done with 

premeditation if there is any instant—if it is the instant 

effect of a sudden quarrel or heat of passion. 

(Tr. July 19, 2000 at 92–93.) That statutory definition was confusing, as evidenced 

by the string of later state-court opinions trying to make sense of the term’s 

meaning. See, e.g., State v. Thompson, 65 P.3d 420, 425–27 (Ariz. 2003) 

(discussing various interpretations of “premeditation” over time). Further, the 

definition effectively elided the distinction between the elements of 

“premeditation” and “knowledge” and robbed “premeditation” of any actual 

meaning.81 In order to assist the jury in understanding premeditation, counsel 

should have requested clarifying instructions to supplement and shed light on the 

definition provided. (See ROA 489 at 1–6 (noting instructions requested by 

defense).) 

First, counsel should have asked the court to instruct the jury that it must find 

 

81 The court gave the following unhelpful definition of “knowingly”: “Knowingly 

means that a defendant acted with awareness of the existence of conduct or 

circumstances constituting an offense. It does not mean that the defendant must 

have known the conduct is forbidden by law.” (Tr. July 19, 2000 at 91.) 

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“beyond a reasonable doubt that the defendant actually reflected.” Thompson, 65 

P.2d at 428.82 Such an instruction, which was presaged before Kiles’s trial by State 

v. Ramirez, would have made clear to the jury that premeditation was distinct from 

knowledge and required actual reflection. 945 P.2d 376, 380–81 (Ariz. 1997) (“Just 

as murder requires actual killing, premeditation requires actual reflection.”), 

superseded by statute as stated in State v. Zamora, 63 P.3d 1050 (Ariz. Ct. App. 

2003). Kiles’s jury was left to deliberate without knowing that premeditation does 

in fact require reflection—not merely time to reflect. 

Second, and relatedly, counsel should have requested that the court define 

“reflection” as an intentional act when deciding the issue of premeditation. (See 

ROA 1189 at 42.) Such an instruction would have further given substance to the 

meaning of premeditation. 

Third, to ascertain that the jury understood that premeditation differed from 

knowledge, counsel should have asked the court to specifically state that “reflection 

differs from the intent or knowledge that conduct will cause death.” Ramirez, 945 

P.2d at 378 (quoting Recommended Arizona Criminal Jury Instruction 11.051); 

(see also ROA 225 at 20). Such an instruction would have ensured that the jury 

recognized that premeditation did not necessarily follow from knowledge and that 

it was a discrete element of the crime of first-degree murder. Cf. Riley v. McDaniel, 

786 F.3d 719, 723–27 (9th Cir. 2015) (holding that a jury instruction that combined 

defined premeditation in terms of deliberation, another element of the crime, 

relieved the state of its burden of proof on each distinct element). Informing the 

jury as much was of particular importance when premeditation was defined in terms 

of knowledge. (See Tr. July 19, 2000 at 92–93); Riley, 786 F.3d at 723–27. 

Because these instructions were available under Arizona law, and because 

 

82 While Thompson contemplated a revised definition of premeditation, the 

requirement that the jury find actual reflection necessarily applies to the 1989 

definition of premeditation offered by the trial court. 

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premeditation was the primary controverted issue for Gunnel’s death, counsel was 

obligated to request these clarifying instructions. Had the jury been given any one 

or any combination of these instructions, the jurors would have understood that the 

State needed to prove actual reflection and that reflection differed from knowledge. 

See Strickland, 466 U.S. at 694; see also Pirtle, 313 F.3d at 1162. If the jury had so 

understood, there is a reasonable probability that one juror would not have 

convicted Kiles of having premeditated Gunnel’s killing.83

Finally, counsel should have requested clarifying instructions with regard to 

the definition of “child abuse.” Specifically, counsel should have requested an 

instruction making clear to the jury that child abuse had not been proven if the child 

abuse necessarily occurred as part of the premeditated murder of a child. See State 

v. Styers, 865 P.2d 765, 771 (Ariz. 1993) (“If a defendant cannot be convicted for 

an intentional aggravated assault that necessarily occurs when there is a 

premeditated murder, it logically follows that he also cannot be convicted for an 

intentional child abuse that necessarily occurs when there is a premeditated murder 

of a child victim.”) Trial counsel knew full well the import of Styers to Kiles’s case: 

counsel argued repeatedly before, during, and after trial that the child-abuse 

charges, and later convictions, should be dismissed under Styers. (See, e.g., ROA 

443; Tr. July 17, 2000 at 109–13.) However, counsel failed to request a simple 

instruction that would have clarified for the jurors that, if they concluded that Kiles 

had committed premeditated murder of one or both children, they could not also 

convict him of child abuse without finding that he had committed some other 

harmful act that was separate from the premeditated murder. 

The prejudice from this error is clear. With respect to Shemaeah, ten jurors 

 

83 Counsel should similarly have asked for an instruction explaining that the jury 

could take into account voluntary intoxication when determining whether Kiles was 

in the “heat of passion,” for the purposes of undercutting premeditation. (See Tr. 

July 19, 2000 at 92–93 (noting that “[a]n act is not done with premeditation . . . if 

it is the instant effect of a sudden quarrel or heat of passion”); ROA 1189 at 44.) 

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found Kiles guilty of premeditated murder. (ROA 482 at 5.) With respect to 

LeCresha, seven jurors found Kiles guilty of premeditated murder. (ROA 482 at 6.) 

Had the jurors understood that they had to find child abuse separate and apart from 

premeditated murder, it is likely that each juror who found premeditated murder 

would not have found Kiles guilty of child abuse. Accordingly, Kiles was easily 

prejudiced by counsel’s failure to request this important instruction properly 

explaining child abuse to the jury. 

Trial counsel’s failure to request clarifying instructions on key issues, with 

respect to the first-degree murder charge for Gunnel and both child-abuse charges, 

prejudiced Kiles. See Strickland, 466 U.S. at 688, 694; Pirtle, 313 F.3d at 1162. He 

is therefore entitled to relief from all three of the resulting convictions.

J. Counsel provided ineffective assistance when they failed to object 

to numerous aspects of the State’s closing argument. 

Trial counsel listened as the State repeatedly mischaracterized and 

misrepresented evidence, vouched for witnesses, and otherwise engaged in 

improper conduct. In failing to object to these and other aspects of the State’s 

closing argument, counsel were ineffective. See Zapata v. Vasquez, 788 F.3d 1106, 

1112 (9th Cir. 2015). 

The most egregious of the State’s transgressions during its closing occurred 

when the State fabricated evidence supporting its theory of how Gunnel was killed. 

The Supreme Court has recognized that a prosecutor “overstep[s] the bounds of . . . 

propriety” when he “put[s] into the mouths of . . . witnesses things which they had 

not said.” Berger v. United States, 295 U.S. 78, 84 (1935). In doing so, the Court 

cautioned that “while [a prosecutor] may strike hard blows, he is not at liberty to 

strike foul ones,” and that it is “his duty to refrain from improper methods calculated 

to produce a wrongful conviction.” Id. at 88.

Here, the State flouted Berger’s proscription against “foul” blows. The State 

wanted to persuade jurors that Gunnel’s death was premeditated, in part by arguing 

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that she endured a prolonged attack that started in the east bedroom and moved to 

the living room. (See, e.g., Tr. July 10, 2000 at 13.) To do so, the State relied heavily 

on Larry Hawkins’s testimony, and accordingly, focused a great deal during its 

closing on depicting Hawkins’s testimony as accurate. “Let’s talk about Larry 

Hawkins. Larry Hawkins, he said it all,” the prosecutor proclaimed. (Tr. July 19, 

2000 at 14.) He improperly vouched for the correctness of Hawkins’s testimony, 

noting that after the initial stumbles during questioning, “[Hawkins] finally said 

completely, accurate [sic] everything that was said to him by the defendant.” (Tr. 

July 19, 2000 at 16); see also United States v. Sanchez, 176 F.3d 1214, 1224 (9th 

Cir. 1999) (“As a general rule, a prosecutor may not express his opinion of the 

defendant’s guilt or his belief in the credibility of government witnesses.”) (quoting 

United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991). The State continued 

that Hawkins’s letter to Silent Witness had details that were just “not something . . . 

Mr. Hawkins would have come up with.” (Tr. July 19, 2000 at 18.) In case the 

State’s embrace of Hawkins was not yet clear, the State continued, “But we have 

Larry Hawkins and the [S]tate [is] saying you should believe Larry Hawkins.” (Tr. 

July 19, 2000 at 19.) 

Having impressed upon the jury the importance and accuracy of Hawkins’s 

testimony, the State then spun a tale about what Hawkins had in fact said. At no 

point had any witness testified that Kiles said that the attack on Gunnel started in 

the east bedroom. Hawkins certainly had not done so. (See Tr. July 13, 2000 at 3–

79.) Instead, Hawkins had testified that after grabbing the tire jack, Kiles went into 

the apartment and “struck her.” (Tr. July 13, 2000 at 29.) Hawkins made no mention 

of Kiles attacking Gunnel in the bedroom, either when testifying or in the Silent 

Witness letter Hawkins had submitted to the police in the wake of the crime. (See 

2000 Trial Ex. 90 at 1.) That, however, did not prevent the State from asserting, 

over and over, that Hawkins had testified that the attack on Gunnel started in the 

bedroom. When trying to discredit Kiles’s testimony, the prosecutor announced, 

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However, we also have the ratchet over here in the other 

bedroom along with the bloody pillow. Now, what makes 

more sense? [Kiles’s version or the] Larry Hawkins version 

about the thing [i.e., the attack on Gunnel] happening back 

there first and then coming on out and the rest happening 

in the front? 

(Tr. July 19, 2000 at 27.) Shortly afterward, the prosecutor again declared, 

The ratchet was back in the bedroom along with the blood, 

just as Larry said. 

(Tr. July 19, 2000 at 27.) The State misrepresented Hawkins’s testimony once more 

in closing: 

No reason for that pillow to get bloody unless that is where 

the assault initiated like Mr. Hawkins told you. 

(Tr. July 19, 2000 at 30.) And, for good measure, when discussing the east bedroom, 

the State punctuated its rebuttal with one more reference to Hawkins: 

Look at the photograph of that pillow. You got the jack, the 

ratchet part in there, but that’s where it began. Again, just 

like Larry Hawkins’ letter says and just like he testified 

here. (Tr. July 19, 2000 at 82.) 

As noted, Hawkins had never said any such thing. But the State’s repetition of its 

convenient misrepresentation—and trial counsel’s failure to object—would 

certainly have convinced the jury otherwise. See Berger, 295 U.S. at 88 

(“[I]mproper suggestions, insinuations, and, especially, assertions of personal 

knowledge are apt to carry much weight against the accused when they should 

properly carry none.”). 

 The State’s misrepresentations did not end there. The State made a concerted 

effort to undermine Kiles’s credibility, telling the jury that, in order to believe Kiles, 

it would “need to forge through and bastardize the facts of this case.” (Tr. July 19, 

2000 at 19; Tr. July 19, 2000 at 25–26, 33, 35 (dismissing Kiles’s “concocted” 

account as an attempt “to put square pegs in the portions of his round holes” in order 

to challenge premeditation and “maintain[ing]” defendant’s guilt); see Sanchez, 176 

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F.3d at 1224. Then, the State proceeded to mischaracterize Kiles’s testimony to 

suggest that it could not be reconciled with the physical evidence. When Kiles was 

asked whether he struck Gunnel more than once before she hit that chair, Kiles 

testified, “I hit her. I – yeah, I guess I hit her more than one time.” (Tr. July 17, 

2000 at 166.) Powell, however, claimed that Kiles testified that “he remembers 

[hitting Gunnel] once.” (Tr. July 19, 2000 at 27.) The State again misquoted Kiles 

in an attempt to damage Kiles’s credibility: “The back of her head is nothing but 

blood. Do you think that was from one blow in the living room when she was 

standing up?” (Tr. July 19, 2000 at 29.) As even Kiles had acknowledged, it was 

not. The State had spun yet another tale to persuade the jury to find that Gunnel’s 

death was premeditated. 

Beyond misstating the evidence to bolster its case for premeditation,84 the 

State made a multitude of other improper comments. For example, its closing 

teemed with inflammatory statements, including the racially tinged and repeated 

claim that the crimes were “a feeding frenzy” and Powell’s reference to Kiles, Kale 

Johnson, and Mike Parker as “the three amigos.” (See, e.g., Tr. July 19, 2000 at 30, 

31, 77); see also Zapata, 788 F.3d at 1114 (declaring improper any inflammatory 

statements designed to appeal to jury’s passions). When trying to explain his own 

use of the phrase “feeding frenzy,” Powell offered the inflammatory and wildly 

speculative claim that the killer was thinking, “I guess since we’re killing one we 

may as well kill them all. Let’s kill the whole family. Let’s kill two generations.” 

(Tr. July 19, 2000 at 77); see Zapata, 788 F.3d at 1112–13 (criticizing prosecutor 

for speculative and “falsified story” of defendant’s last words to victim). The State 

 

84 The State’s mischaracterizations of evidence did not end there. As just one more 

example, the State claimed, “[W]e do know that Valerie had absolutely no drugs in 

her system when she died. . . . You heard that from the doctor.” (Tr. July 19, 2000 

at 83.) As Dr. Mallon had testified, however, Gunnel’s negative drug test results 

were necessarily limited to the drugs for which Dr. Mallon had tested, and he had 

not tested her body for marijuana. (Tr. July 13, 2000 at 100–01.) 

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further speculated, again improperly, that there were at the time of trial Converse 

prints near the river, suggesting that the shoeprints found there earlier should be 

dismissed as meaningless. (Tr. July 19, 2000 at 80.) 

In addition, the State misrepresented the defense’s position by suggesting 

that counsel was arguing for the jury “to excuse[] [Kiles’s] conduct on the murder 

of three people” (Tr. July 19, 2000 at 84), when defense counsel were by no means 

asking the jury to let Kiles off scot-free for Gunnel’s death. The State also misstated 

the law, in telling the jury that premeditation required only “a time to permit 

reflection, that can be instantaneous.” (Tr. July 19, 2000 at 35.) The prosecutor even 

injected into his closing his personal belief that he could not follow the defense’s 

argument. (See Tr. July 19, 2000 at 30.) As a final example, the State closed its 

rebuttal argument by basically telling the jurors that it was their duty, in the name 

of justice, to convict Kiles: 

The [S]tate is here asking for justice. . . . The best 

definition of justice I ever heard was assignment of 

responsibility. Because we base our community and society 

on acceptance of responsibility, whether it’s done willingly 

or unwillingly. You get that old speeding ticket and April 

15th comes around and you write that big check. It is a part 

of being a citizen. Some people don’t accept it and we have 

to assign responsibility to them. They won’t accept it. It’s 

a big job. . . . Ladies and gentlemen, it’s you, and you know 

who it is. . . . You can assign responsibility. That’s what 

we’re asking you to do now, ladies and gentlemen, please. 

 (Tr. July 19, 2000 at 85.) In effect, the State ended the trial by telling the jurors that 

it was their job, as citizens who cared about their community and their society, to 

convict Kiles. See Sanchez, 176 F.3d at 1224–25 (finding prosecutorial misconduct 

because it is “improper for the prosecutor to state that the duty of the jury is to find 

the defendant guilty”).85

 

85 The State’s repeated statement that some people do not accept responsibility—

and the implication that Kiles was such a person and that he was wrong for not 

accepting responsibility—further suggested to the jury that Kiles was wrong for 

having asserted his Sixth Amendment right to go to trial on the charges against him. 

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Despite all of these errors, defense counsel objected only once to the State’s 

closing, when the State improperly “maintain[ed] to you . . . [that] never has a case 

exhibited more premeditation” than Kiles’s case. (See Tr. July 19, 2000 at 36–37.) 

Even then, counsel did nothing when the trial court gave an instruction that did not 

address the underlying problem: that the State expressed its belief that the evidence 

before the jury clearly showed premeditation. (See Tr. July 19, 2000 at 36–37.) In 

the face of so many other missteps by the State, including the misrepresentation of 

evidence going to premeditation—the core issue for Gunnel’s death—trial 

counsel’s failure to object was deficient. See Zapata, 788 F.3d at 1112. Because of 

that deficient performance, the last few things the jury heard were that Hawkins had 

testified that the attack on Gunnel started in the bedroom, that Kiles’s testimony did 

not fit with the physical evidence, and that it was the jury’s duty to assign 

responsibility when Kiles had chosen not to accept it himself. Had counsel objected 

to this prosecutorial display, at least signaling to the jury that the State was 

misguided, then there is a reasonable probability that at least one juror would have 

come out differently with regard to premeditation, and therefore first-degree 

murder, for Gunnel’s death. See Strickland, 466 U.S. at 694.

K. Counsel also rendered ineffective assistance in failing to ensure 

that a record was made of key parts of the guilt-phase proceedings. 

As discussed in depth in Claim 16, infra, Kiles’s counsel let significant 

portions of the pretrial and trial proceedings go unrecorded. Counsel did so despite 

Kiles’s specific request that a record be made of all proceedings (see, e.g., Tr. Aug. 

6, 1999 at 13), and despite the need for meaningful appellate review, see Gregg v. 

Georgia, 428 U.S. 153, 197–98 (1976) (joint opinion of Stewart, Powell, and 

Stevens, JJ.). In doing so, counsel performed deficiently and prejudiced Kiles. See 

Strickland, 466 U.S. at 688, 694. 

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L. Counsel’s numerous errors, individually and cumulatively, 

undermined the reliability of Kiles’s guilt-phase proceedings. 

While each instance of deficient performance described above is prejudicial 

on its own, counsel’s guilt-phase errors were decidedly prejudicial when considered 

cumulatively. When evaluating an ineffective-assistance claim, this Court must 

consider the cumulative impact of counsel’s various errors. As the Supreme Court 

has stated, “In making this [prejudice] determination, a court hearing an 

ineffectiveness claim must consider the totality of the evidence before the judge or 

jury.” Strickland, 466 U.S. at 695; see Williams (Terry) v. Taylor, 529 U.S. 362, 

397–98 (2000); see also White v. Ryan, 895 F.3d 641, 645 n.1 (9th Cir. 2018) (ruling 

that the district court erred by granting a certificate of appealability on a portion of 

an ineffective assistance claim because the petitioner “has but a single claim 

regarding his right to the effective assistance of counsel at the penalty phase”); 

Martin, 424 F.3d at 590–92 (“[E]ven if [trial counsel’s] errors, in isolation, were 

not sufficiently prejudicial, their cumulative effect prejudiced Martin’s defense.”); 

Alcala v. Woodford, 334 F.3d 862, 882–83 (9th Cir. 2003) (granting relief on basis 

of cumulative impact of multiple errors by counsel); Lindstadt, 239 F.3d 191, 205 

(2d Cir. 2001) (granting relief where petitioner was prejudiced by cumulative effect 

of errors committed by trial counsel); Harris ex rel. Ramseyer v. Wood, 64 F.3d 

1432, 1439 (9th Cir. 1995) (holding that cumulative impact of numerous 

deficiencies in defense counsel’s performance was prejudicial, warranting habeas 

relief). 

Here, had counsel not performed deficiently, the jury would have heard a 

legally cognizable and factually supported defense to premeditation, would have 

seen the State’s forensic case get undercut on cross-examination and by defense 

experts, and would have been properly instructed that premeditation requires more 

than just the passage of time. The jury would not have been misled by the State’s 

closing into overestimating the strength of the State’s case that Gunnel’s death was 

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premeditated. Further, the jury would have been spared unduly prejudicial 

photographs and would have known the appropriate definition of child abuse under 

Arizona law. Had counsel performed competently, there is at least a reasonable 

probability that one juror would have decided differently on the first-degree murder 

count for Gunnel’s death and on each of the child-abuse counts. See Strickland, 466 

U.S. at 694.

M. The state post-conviction court’s decision that Kiles failed to state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. 

The state post-conviction court said the following in rejecting Kiles’s guiltphase claim of ineffective assistance of counsel: 

Defendant’s claims regarding deficient attorney 

performance related to Exhibit 2 [Larry Hawkins’s 

affidavit from 1994] do not demonstrate a prejudice that 

would have been suffered by defendant. 

Defendant’s claims concerning the blood spatter expert and 

blood volume evidence do not demonstrate a deficient 

performance by counsel or that the outcome would have 

been different. 

Nor has Defendant shown deficient performance or 

prejudice as to the impeachment of Kale Johnson. 

Defendant’s claims as to the reflection instruction is [sic] 

also precluded. 

Defendant has failed to make the requisite showing as to 

deficient performance or prejudice in relationship to the 

Christensen defense . . . and presentation of impulsivity 

evidence. 

(ROA 1214 at 2 (emphasis added).) 

 First, the court invoked a procedural bar with respect to “Defendant’s claims 

as to the reflection instruction.” (ROA 1214 at 2.) Preliminarily, that ruling is 

insufficiently explicit as to the basis of preclusion to constitute a procedural bar to 

this Court’s review. See McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995). 

More critically, any preclusion bar here is neither adequate nor independent of 

federal grounds for relief. The state post-conviction court ruled an ineffectiveCase 2:17-cv-04092-GMS Document 33 Filed 09/26/18 Page 152 of 500
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assistance-of-counsel claim precluded, even though the claim could not have been 

brought during earlier proceedings. See Martinez v. Ryan, 566 U.S. 1, 10–11 (2012). 

Because Arizona state courts do not regularly treat ineffective-assistance claims as 

precluded during initial state post-conviction proceedings—the state court here did 

not attempt to do so with regard to other ineffective-assistance claims—the 

procedural ruling is not adequate and is no bar to federal review. See Coleman v. 

Thompson, 501 U.S. 722, 729 (1991); Beard v. Kindler, 558 U.S. 53, 60–61 (2009) 

(on adequacy requirement); Ford v. Georgia, 498 U.S. 411, 423–24 (1991) (holding 

that a state procedural bar is not adequate unless it is “firmly established and 

regularly followed”). 

 The state-court merits ruling on this claim is, moreover, contrary to and/or 

an unreasonable application of clearly established federal law for two distinct 

reasons. See 28 U.S.C. § 2254(d)(1). First, as described below, the court applied the 

wrong prejudice standard for Strickland claims. Second, the court failed to consider 

the cumulative impact of counsel’s instances of deficient performance. 

 Under the clearly established federal law in Strickland, counsel’s deficient 

performance prejudices a defendant when “there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” 466 U.S. at 687–88, 694. The Strickland Court explicitly rejected 

an “outcome-determinative standard.” Id. at 693-94. Indeed, any standard other 

than that explicitly laid out in Strickland is contrary to clearly established Supreme 

Court precedent. See Williams, 529 U.S. at 397. 

 Here, the state post-conviction court adopted an outcome-determinative 

standard, as opposed to the Strickland standard. The court dismissed part of Kiles’s 

claim as not colorable because he did “not demonstrate . . . that the outcome would 

have been different.” (ROA 1214 at 2.) At no point did the court cite any other 

prejudice standard for an ineffective-assistance claim, and at no point did the court 

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cite a case applying the correct Strickland standard.86 (See ROA 1214 at 1-2.) 

Accordingly, the state post-conviction court unambiguously applied a standard that 

was contrary to and/or an unreasonable application of clearly established federal 

law, satisfying 28 U.S.C. § 2254(d)(1). See, e.g., Thomas, 789 F.3d at 767–68 

(holding that court’s “would have led to a different result” prejudice standard was 

an unreasonable application of Strickland, when the state court did not explain why 

there was no prejudice or otherwise demonstrate that it had used the correct 

standard); Martin, 424 F.3d at 592 (holding that the state court’s prejudice 

inquiry—whether “the result of the proceeding would have been different”—was 

contrary to Strickland). 

 In addition, under Strickland and other Supreme Court precedent, the court 

must evaluate prejudice cumulatively. See Strickland, 466 U.S. at 694–95 (“The 

defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. . . .

In making this [prejudice] determination, a court hearing an ineffectiveness claim 

must consider the totality of the evidence before the judge or jury.”); see also, e.g.,

Williams, 529 U.S. at 397–98. In fact, Strickland explicitly adopted the materiality 

standard in United States v. Agurs, 427 U.S. 97 (1976), for a suppression-ofevidence claim. Strickland, 466 U.S. at 694. The Supreme Court has repeatedly and 

forcefully held that the materiality standard considers cumulative prejudice; in other 

words, when assessing materiality, the suppressed evidence must be “considered 

collectively, not item by item.” Kyles v. Whitley, 514 U.S. 419, 436 (1995). 

Accordingly, in order to comply with clearly established Supreme Court precedent, 

“[s]eparate errors by counsel at trial and at sentencing should be analyzed together 

 

86 Indeed, at no point did the state post-conviction court cite any case at all. (See 

ROA 1214 at 1-2.) Further, because the state court never gave any indication that it 

was applying the correct prejudice standard under Strickland, it must have applied 

the incorrect standard—the sole standard for prejudice it cited—to every 

ineffective-assistance claim it considered. 

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to see whether their cumulative effect deprived the defendant of his right to 

effective assistance.” Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003). “They 

are, in other words, not separate claims, but rather different aspects of a single claim 

of ineffective assistance of trial counsel.” Id. Even if prejudice does not result from 

an individual error, it may nevertheless result from cumulative errors. See Boyde v. 

Brown, 404 F.3d 1159, 1176 (9th Cir. 2005). 

 Kiles’s state post-conviction court, however, considered the prejudice from 

each instance of deficient performance (albeit using the wrong standard) separately. 

The court did not consider or even allude to cumulative prejudice. Because the state 

court failed to do so, its ruling was an unreasonable application of and/or contrary 

to Supreme Court precedent. See Strickland, 466 U.S. at 694–95. 

 The state court’s decision of no colorable showing with respect to deficient 

performance was likewise an unreasonable application of or contrary to Supreme 

Court precedent; further, the decision on both prongs turned on an unreasonable 

determination of fact. See 28 U.S.C. § 2254(d)(2); see also, e.g., Taylor v. Maddox, 

366 F.3d 992, 999–1001 (9th Cir. 2004) (discussing ways in which § 2254(d)(2) 

can be satisfied). As just one example, the state court necessarily ignored counsel’s 

wholesale lack of investigation before adopting a trial strategy, which is an 

unreasonable application of Strickland and/or an unreasonable determination of 

fact. See Taylor, 366 F.3d at 1001 (“the state-court fact-finding process is 

undermined where the state court has before it, yet apparently ignores, evidence 

that supports the petition’s claim”). Because Kiles has satisfied § 2254(d), this 

Court’s analysis is “unconstrained” by AEDPA deference.87 See Williams, 529 U.S. 

at 405–06.

 

87Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

See Martinez, 566 U.S. at 9; Strickland, 466 U.S. at 688, 694. 

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N. Conclusion. 

For the reasons stated above, Kiles’s counsel provided ineffective assistance 

at Kiles’s guilt-phase proceedings, thereby prejudicing Kiles. The state-court 

decision is no bar to this Court’s de novo review of this claim, and Kiles is entitled 

to relief from his unconstitutional convictions. 

Claim Four 

Kiles’s counsel’s ineffective assistance in jury selection at the 

penalty phase of trial deprived Kiles of his rights to counsel, a fair 

trial, an impartial jury, reliable sentencing proceedings, due 

process, and equal protection. 

Kiles’s counsel’s ineffective assistance in penalty-phase jury selection 

deprived Kiles of his rights to counsel, a fair trial, impartial jury, reliable sentencing 

proceedings, due process, and equal protection in violation of the Fifth, Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates 

by specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

Kiles did not present this claim in state court. Kiles can overcome any default 

by showing cause and prejudice, as the ineffective assistance of Kiles’s state postconviction counsel in failing to raise this claim constitutes cause for the default and 

resulted in prejudice to Kiles. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984). Kiles will demonstrate at an 

evidentiary hearing that state post-conviction counsel fell below the standards of a 

minimally competent capital post-conviction attorney when they failed to raise this 

meritorious claim. Because this claim has not been adjudicated by the Arizona state 

courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this 

Court’s review, and the Court may consider the merits of the claim de novo. 

As noted in Claim 2, supra, “the selection of jurors is a critical area of a jury 

trial, especially in a capital case.” Harris ex rel. Ramseyer v. Blodgett, 853 F. Supp. 

1239, 1265 (W.D. Wash. 1994); see also Gary Goodpaster, The Trial for Life: 

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Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 

325 n.125 (1983) (because a death verdict must be unanimous, “it is critically 

important that the defense secure jurors disfavoring the death penalty”). 

The Constitution safeguards against a mandatory death sentence upon 

conviction. Woodson v. North Carolina, 428 U.S. 280 (1976) (joint opinion of 

Stewart, Powell, and Stevens, JJ.). At the core of that protection is the right to be 

sentenced by jurors who make an individualized, reasoned moral decision whether 

life or death is the appropriate sentence, by considering and giving full effect to all 

mitigation. See Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 

U.S. 104 (1982). Thus, in selecting a capital jury, counsel must elicit sufficient 

information to determine whether a prospective juror has a “substantial[] 

impair[ment]” regarding sentencing—if the answer is yes, that juror cannot serve. 

See Morgan v. Illinois, 504 U.S. 719, 728 (1992). 

Jurors with absolutist views for or against the death penalty must be 

disqualified. Wainwright v. Witt, 469 U.S. 412, 424–26 (1985). Such jurors include 

those who would automatically vote for the death penalty if, for example, a certain 

type of aggravating circumstance were established. “The risk that such jurors may 

have been empaneled [] and ‘infected petitioner’s capital sentencing [is] 

unacceptable in light of the ease with which that risk could have been minimized.’” 

Morgan, 504 U.S. at 736 (quoting Turner v. Murray, 476 U.S. 28, 36 (1986)). To 

avoid such an outcome, counsel must learn jurors’ feelings on issues relevant to the 

individual case. Counsel must utilize vigorous voir dire to fully explore each 

prospective juror’s views and mitigation impairments, which requires familiarity 

with the information that both parties will likely present at the penalty phase. See 

Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (“Voir dire plays a critical 

function in assuring the criminal defendant that his [constitutional] right to an 

impartial jury will be honored. Without an adequate voir dire the trial judge’s 

responsibility to remove prospective jurors who will not be able impartially to 

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follow the court’s instructions and evaluate the evidence cannot be fulfilled.”) 

Because of the critical nature of jury selection, especially in capital cases, 

counsel’s failure to engage in adequate voir dire can constitute ineffective 

assistance. See Strickland, 466 U.S. at 688, 694; Ybarra v. McDaniel, 656 F.3d 984, 

1001 (9th Cir. 2011) (analyzing claim of ineffective assistance of counsel with 

respect to jury selection). 

The 2003 ABA Guidelines obligated counsel to familiarize themselves “with 

the precedents relating to questioning and challenging of prospective jurors, 

including the procedures surrounding ‘death qualification’ concerning any 

prospective juror’s beliefs about the death penalty.” 2003 ABA Guideline 

10.10.2(B). The Guidelines further required capital counsel to be familiar with how 

to do the following: (1) expose those prospective jurors who would automatically 

impose the death penalty following a murder conviction or a finding that the 

defendant is death-eligible, regardless of the individual circumstances of the case; 

(2) uncover those prospective jurors who could not give meaningful consideration 

to mitigating evidence; and (3) rehabilitate prospective jurors whose initial 

indications of opposition to the death penalty could make them excludable. Id.

By the time of Kiles’s 2006 sentencing, the proper methods for selecting a 

capital jury were established and routinely followed in other cases. While capital 

jury selection was relatively new to Arizona, others nationwide had engaged in the 

practice for some time, and literature and trainings were widely available in Arizona 

well before Kiles’s trial. See, e.g., John H. Blume, et al., Probing “Life 

Qualification” Through Effective Voir Dire, 29 Hofstra L. Rev. 1209 (2001). The 

need for training was particularly acute after the switch to jury sentencing in 

Arizona, given the nuances of effective capital jury selection.

Kiles’s counsel, however, lacked the requisite training and experience in 

capital jury selection. As a result, counsel failed to question prospective jurors in a 

manner designed to expose and exclude, or rehabilitate if appropriate, jurors 

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impaired under Morgan, given Kiles’s individual circumstances. As elaborated 

below, counsel’s voir dire failed to uncover the jurors who were unable to give full 

and fair consideration to Kiles’s mitigation evidence as constitutionally required. 

Because some jurors unable to do so were then seated, that ineffective voir dire 

prejudiced Kiles. See Ybarra, 656 F.3d at 1001 (prejudice from deficient voir dire 

shown when “any juror who harbored an actual bias was seated on the jury as a 

result of counsel’s failure to voir dire” on the relevant subject matter). 

A. Despite having won the right to question prospective jurors on 

specific types of mitigation, counsel failed to do so, thereby 

prejudicing Kiles. 

Kiles’s counsel performed deficiently, as the failure to question jurors 

individually about the specific types of mitigation to be presented, after winning the 

right to do so, fell short of “prevailing professional norms.” Strickland, 466 U.S. at 

688. The 2003 ABA Guidelines required counsel to learn techniques for 

“uncovering those prospective jurors who [were] unable to give meaningful 

consideration to mitigating evidence.” 2003 ABA Guideline 10.10.2(B). Jury 

selection is especially critical in a capital case. Harris, 853 F. Supp. at 1265. 

The right to adequate voir dire as guaranteed by Morgan hinges on counsel 

making reasoned professional judgments. While counsel’s decisions are typically 

given deference, this deference applies only insofar as counsel makes a strategic 

decision based on reasonable professional judgment, based on “thorough 

investigation of law and facts relevant to plausible options[.]” Strickland, 466 U.S. 

at 690–91; Williams v. Taylor, 529 U.S. 362, 373 (2000). Deference is not 

warranted where a decision is based on inattention. See Rompilla v. Beard, 545 U.S. 

374, 395–96 (2005) (finding prejudice where counsel made a decision that 

prejudiced a defendant as “the result of inattention, not reasoned strategic 

judgment”) (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). 

Kiles’s second counsel, Treasure VanDreumel, knew the importance of 

questioning prospective jurors individually, particularly on their views on specific 

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mitigation. Shortly before voir dire began on March 6, 2006, VanDreumel filed a 

“Request to Voir Dire Prospective Jurors re: Mitigating Factors Recognized by 

Law,” accompanied by a memorandum arguing the need to question jurors 

individually about mitigation, with hypotheticals, to ensure that the jurors would 

consider mitigation and not automatically impose the death penalty. (ROA 729.) 

When the State opposed the motion (see ROA 742 at 2), VanDreumel urged lead 

counsel Clark to argue the motion, noting that where a trial court prevents counsel 

from asking about prospective jurors’ views on mitigation through voir dire, 

appellate courts have held it a due-process error. Kiles won this motion. 

However, Clark conducted the voir dire, and he did not ask prospective jurors 

about specific types of mitigation or hypotheticals relevant to Kiles or his case. 

Indeed, shortly after jury selection ended, Kiles’s mitigation specialist, Tyrone 

Mayberry, e-mailed VanDreumel expressing his frustration with the jury selection 

process, and specifically with the fact that Clark had picked a jury without knowing 

anything about Kiles’s mitigation. VanDreumel responded that she normally would 

agree, especially as she fought to win the motion, but that at least none of the seated 

jurors admitted to being an automatic vote for a death sentence. She noted that 

asking about Kiles-specific mitigation would have been helpful only if Clark had 

been well-versed on the Colorado Method,88 which he was not. Lead counsel was 

not trained to conduct or experienced with the premier method for conducting 

capital voir dire; even worse, he knew nothing about the mitigation his own team 

planned to present.89 Still, he conducted the bulk of voir dire at sentencing. 

 

88 The “Colorado Method” is a name for a system of Morgan-based voir dire that 

includes questions on hypothetical, case-specific mitigation, “developed for use [in] 

capital cases to rate potential jurors . . . based on their views on the death penalty.” 

Fulks v. United States, 875 F. Supp. 2d 535, 600 (D.S.C. 2010). By September 

2002, the Maricopa County Office of the Public Defender’s Capital Unit required 

that its attorneys be trained on and use the Colorado Method for jury selection. 

89 As discussed in Claim 6, infra, lead counsel’s failure to familiarize himself with 

any of the mitigation pertaining to his capital client, and the team’s general 

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Moreover, Clark’s deficient performance prejudiced Kiles, as there was “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694. “‘Establishing 

Strickland prejudice in the context of juror selection requires a showing that, as a 

result of trial counsel’s [error], the jury panel contained at least one juror who was 

biased.’” Ybarra, 656 F.3d at 1001 (quoting Davis v. Woodford, 384 F.3d 628, 643 

(9th Cir. 2004)) (alteration in original). 

Here, counsel failed to question multiple people who served on Kiles’s jury 

who indicated that they could not be impartial or fully consider mitigation. For 

example, Juror 6 wrote repeatedly on his questionnaire that, when he was a child 

about the same age as a victim in Kiles’s case, his father murdered his mother. He 

wrote that he received mental-health treatment because of the domestic violence in 

his home, ending with his father murdering his mother. Juror 6 wrote that his father 

was paroled after 121⁄2 years, and moreover that parole should not be allowed for 

such a crime. In response to the question whether a particular life event influenced 

his view on the death penalty, his questionnaire cited his experience with his 

mother’s murder. The State asked him about his mother’s murder, and he said that 

he was adopted by his mother’s side of the family, but he could not specify how her 

murder affected him, beyond forcing him to grow up quickly. (Tr. Mar. 7, 2006 at 

7–8.) Inexplicably, Clark asked him zero questions. (Tr. Mar, 7, 2006 at 9.) This 

juror was victimized by a domestic-violence crime with facts strikingly similar to 

those alleged by the State in Kiles’s case, calling into question Juror 6’s ability to 

remain impartial and fair. See Ariz. Rev. Stat. § 13-4401(19).90 It is inexcusable 

that counsel did not ask him a single question or ask that he be struck for cause. See

 

dysfunction, denied Kiles effective assistance of counsel throughout proceedings, 

including at voir dire. 

90 This Petition cites the current version of the Arizona Revised Statutes (hereinafter 

“A.R.S.”), except when it is not substantially similar to the version of the statute at 

issue. 

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United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (explaining that a 

court may assume a juror is biased where he “has had some personal experience 

that is similar or identical to the fact pattern at issue in the trial”); see also Tinsley 

v. Borg, 895 F.2d 520, 528 (9th Cir. 1990) (explaining that “[c]ourts have been 

willing to presume bias where a juror or his close relatives have been personally 

involved in a situation involving a similar fact pattern”). 

 Juror 2 said that her sister had been severely beaten and moved “from room 

to room” during an assault in her home—another crime notably reminiscent of the 

State’s version of the crime at issue. (Tr. Mar. 6, 2006 at 81.) Further, for years 

Juror 2 had worked on criminal cases in the county attorney’s office, and her best 

friend’s sister had been killed. (Tr. Mar. 6, 2006 at 81–89.) Again, even though 

Juror 2’s prior experiences begged for further questioning to explore her ability to 

be impartial, Clark asked her no questions about her personal experience with 

violent crime. (Tr. Mar. 6, 2006 at 81–89.) He also did not challenge her for cause, 

even though such a challenge would have been granted. See Gonzalez, 214 F.3d at 

1112; Tinsley, 895 F.2d at 528. 

Clark continued to fail to question prospective jurors on critical topics. Juror 

3 wrote on her questionnaire that her friend had been killed by a drunk driver. Clark 

did not ask about this experience or whether it would impair her ability to consider 

substance-abuse mitigation; he also did not challenge her for cause. (Tr. Mar. 6, 

2006 at 95–98.) Juror 5’s siblings worked as police officers and for the county 

attorney. Clark asked Juror 5 no questions on this or whether she would give greater 

weight to the prosecutor or law-enforcement witnesses because of her familial 

connections. (Tr. Mar. 7, 2006 at 10–16.) Juror 14 wrote that his wife and stepdaughter were in treatment for post-traumatic stress. Clark did not ask why they 

were in such treatment or whether that could impair his ability to consider 

mitigation fairly. (Tr. Mar. 15, 2006 at 38–45.) 

Counsel’s unprofessional failure to ask questions on hypothetical mitigation 

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given the facts of the case resulted in the seating of multiple jurors who were 

unwilling to consider as mitigating some of the evidence presented at trial or who 

were otherwise biased. Ybarra, 656 F.3d at 1001; see also, e.g., Gonzalez, 214 F.3d 

at 1112. Accordingly, counsel provided ineffective assistance during the penaltyphase voir dire. 

B. Counsel deficiently failed to question a number of seated jurors 

about their pro-death sentence biases, thereby prejudicing Kiles. 

Counsel failed to ask any questions of some seated jurors and failed to 

meaningfully question other seated jurors. This resulted in multiple people serving 

on Kiles’s jury who should have been struck for cause because their ability to 

consider voting for a life sentence was substantially impaired. 

In Morgan, the Supreme Court reiterated that any juror who would 

automatically impose the death penalty upon conviction must be disqualified for 

cause. 504 U.S. at 729, 735–36. The Court further held that capital defendants are 

constitutionally entitled to examine prospective jurors on voir dire with enough 

specificity to identify and challenge any juror holding such views. Id. at 729, 735–

36. As discussed above, the 2003 ABA Guidelines required capital counsel to be 

familiar with techniques for upholding a defendant’s rights under Morgan. 2003 

ABA Guideline 10.10.2(B). Clark was obligated to familiarize himself with 

techniques for uncovering those prospective jurors who are unable to give 

meaningful consideration to the mitigating evidence at issue. See 2003 ABA 

Guideline 10.10.2(B); Morgan, 504 U.S. at 736. Indeed, “the starkest failures of 

capital voir dire are the failure to uncover jurors who will automatically impose the 

death penalty following a conviction or finding of the circumstances which make 

the defendant eligible for the death penalty[.]”). 2003 ABA Guideline 10.10.2(B) 

cmt.; see also Virgil v. Dretke, 446 F.3d 598, 613 (5th Cir. 2006) (counsel must 

make reasonable efforts “to explore the depth or intensity” of potentially 

disqualifying views among the venire). 

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Clark repeatedly failed to ask prospective jurors questions sufficient to 

uncover biases in favor of death, including biases that might require 

disqualification. Moreover, he did so even though the prospective jurors’ 

questionnaires and other voir dire answers raised serious concerns that they could 

not be impartial and could not meaningfully consider mitigation evidence. In doing 

so, Clark performed deficiently. See Strickland, 466 U.S. at 694. 

For example, Juror 1 wrote on her questionnaire that, if there were a fair trial, 

she would support the death penalty; she added that the death penalty was more 

appropriate in this case than a life sentence. Juror 2 wrote on her questionnaire that 

she was okay with the death penalty for first-degree murder if the person was 

convicted beyond a reasonable doubt; she could vote for life with parole eligibility 

after 25 years, but she did not like that sentence for such a crime. Instead of 

challenging these jurors for cause, or questioning them to establish that they should 

be disqualified as automatic death votes, Clark asked a few questions, and the jurors 

were seated. (Tr. Mar. 6, 2006 at 70–72, 86–89.) Clark failed to question other 

people who should have been disqualified or removed via defense peremptory, 

including Juror 12 wrote who on his questionnaire that the death penalty was 

appropriate for a first-degree murder conviction, because you pay for what you do 

in life. Defense counsel did not ask him a single question and did not challenge him 

for cause. (Tr. Mar. 8, 2006 at 71–72.) Juror 12 was then seated.91 

Because jurors were seated despite their inability to fairly consider a life 

sentence, counsel’s deficient performance at voir dire prejudiced Kiles. See Ybarra, 

656 F.3d at 1001. 

C. Counsel deficiently altogether failed to question eight seated 

jurors, thereby prejudicing Kiles. 

Kiles’s counsel failed to ask a single question of eight jurors who were 

 

91 Ultimately, Juror 12 served as an alternate juror. (Tr. Apr. 12, 2006 at 29–30.) 

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ultimately selected. Kiles’s attorneys failed to use the tools at their disposal, and as 

a result, a number of jurors were seated without any defense questions at voir dire. 

As discussed above, given the importance of jury selection in a capital case, 

it is incumbent upon counsel to ensure that seated jurors are able to consider 

mitigating circumstances and are able to consider a life sentence. 2003 ABA 

Guideline 10.10.2(B) cmt.; see also Virgil, 446 F.3d at 613. In failing abjectly to do 

so, counsel performed deficiently. 

More specifically, Kiles’s counsel did not ask a single individual question of 

eight people who were selected for Kiles’s jury: Jurors 6, 9, 10, 11, 12, 13, 15 and 

16.92 (Tr. Mar. 7, 2006 at 9, 117; Tr. Mar. 8, 2006 at 32, 43–44, 71–72; Tr. Mar. 15, 

2006 at 70, 74.) This was despite statements on their questionnaires and during the 

State’s voir dire that called into question their ability to be fair and impartial and 

their ability to fully consider mitigating evidence. In addition to the jurors discussed 

in Sections A and B, supra, other jurors raised what should have been red flags for 

the defense. For example, Juror 14 said during the State’s questions that he 

volunteered at a crisis center for abused children. (Tr. Mar. 15, 2006 at 64.) Given 

that Kiles had been convicted of the first-degree murder of two children and two 

counts of child abuse, counsel was required to follow up on how Juror 14’s 

volunteer work affected his ability to be fair in this case. Similarly, Jurors 11 and 9 

stated that they were burglary victims. (Tr. Mar. 8, 2006 at 11–12.) Still, Clark 

asked them no questions. 

Again, because jurors who harbored actual biases based on their personal 

experiences were seated because of counsel’s deficient performance during voir 

dire, Kiles was prejudiced. See Ybarra, 656 F.3d at 1001. 

 

92 Jurors 10, 12, and 13 were alternates. 

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D. Counsel failed to question adequately and to challenge for cause 

jurors who should have been disqualified for cause. 

Kiles’s counsel was ineffective in failing to adequately question multiple 

jurors whose questionnaires or answers to the State’s questions indicated that the 

prospective jurors should be struck for cause. As a result of this failure of advocacy, 

Kiles’s counsel had to use peremptory strikes against these jurors, depriving Kiles 

of a fair and impartial jury. 

As discussed above, counsel conducting capital voir dire must know 

techniques for exposing prospective jurors who would automatically impose the 

death penalty or who are unable to give meaningful consideration to mitigating 

evidence. 2003 ABA Guideline 10.10.2(A), (B). Such jurors are impaired under 

Morgan and cannot serve. Morgan, 504 U.S. at 728. 

Kiles’s counsel unreasonably failed to utilize such techniques. Many jurors 

against whom defense counsel used peremptory strikes could have been challenged 

for cause, had counsel properly questioned them. For example, prospective Juror 

23 wrote on her questionnaire that she believed the death penalty was appropriate 

for first-degree murder because she believed in an eye for an eye, you get what you 

give. She wrote that a life sentence was not fair or just: Why should a person be 

allowed to live when he took a life? She expanded that in prison you get three meals, 

showers, library, and a clean bed to sleep in. The defense did not even attempt to 

challenge this juror for cause; counsel instead wasted a peremptory strike. 

Similarly, prospective Juror 63 said in voir dire that the death penalty should 

be used in cases with aggravating factors, such as child victims. (Tr. Mar. 7, 2006 

at 103.) Clark questioned him, but did not ask if he would impose the death penalty 

in every case with child victims—whether the prospective juror could consider a 

life sentence in this case. (Tr. Mar. 7, 2006 at 105–06.) Again, defense counsel did 

not challenge the prospective juror for cause and instead used a peremptory strike. 

Further, defense counsel failed altogether to question three prospective jurors 

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whom the defense later struck: prospective Jurors 37, 98, and 85. Competent voir 

dire would likely have elicited that they were substantially impaired under Morgan. 

For example, prospective Juror 37 wrote on her questionnaire and said during the 

State’s voir dire that her friend’s two-year-old granddaughter had been killed the 

prior year. (Tr. Mar. 7, 2006 at 72.) She said in response to the State’s questioning 

that this experience would not affect her; she could be impartial, as long as she was 

not facing the person who had killed her friend’s grandchild. (Tr. Mar. 7, 2006 at 

73.) However, she wrote on her questionnaire that the death penalty took too long, 

hurting victims’ families, and that it was not imposed frequently enough. Clark 

could have questioned her to elicit specific instances in which she could not be 

impartial, such as when there was a child victim. Instead, he asked no questions.93

(Tr. Mar. 7, 2006 at 75.) 

While Kiles’s counsel did challenge two prospective jurors for cause, 

counsel’s failure to effectively argue the challenges caused counsel to lose both 

times. (See Tr. Mar. 16, 2006 at 9–15.) Counsel made for-cause challenges against 

only prospective Jurors 78 and 82. (Tr. Mar. 16, 2006 at 9, 13.) But counsel failed 

to properly ask them questions to fully expose the extent to which they should have 

been excluded as jurors who would have automatically imposed death. (See Tr. 

Mar. 8, 2006 at 47–61, 88–106.) Prospective Juror 78 stated on his questionnaire 

and in voir dire that he would vote for death for first-degree murder if it were an 

option; if a person were guilty beyond a reasonable doubt, he would give death. (Tr. 

Mar. 8, 2006 at 58.) Prospective Juror 82 stated that the death penalty should be 

mandatory where there is no remorse. (Tr. Mar. 8, 2006 at 103–04.) He also said 

that his aunt was murdered in 2001 by a man who entered her home and beat her, 

 

93 Counsel failed to preserve the jury questionnaires of Prospective Jurors 98 and 

85. Given that the defense struck these two prospective jurors, it is likely that the 

questionnaires contained something indicating that they would be biased against 

the defense. Counsel could have elicited these biases through questioning, obviating 

the need to use peremptory strikes on these prospective jurors.

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that proceedings were ongoing in that case, and that he had voted to sentence a 

person to death while serving on a Nevada jury in the late 1980s. (Tr. Mar. 8, 2006 

at 99–102.) When arguing the challenge for cause against Prospective Juror 82, 

counsel did not even mention the prospective juror’s aunt was murdered or his prior 

capital jury service. As a result, the court did not disqualify these jurors for cause. 

(Tr. Mar. 16, 2006 at 13, 15.) 

Counsel’s tepid advocacy left counsel with no option but to use peremptory 

strikes against these prospective jurors. As a result, once counsel had used all of 

their allotted strikes (see ROA 895), counsel were unable to remove biased jurors, 

including those described above. And, because at least one biased juror served on 

Kiles’s jury as a result of counsel’s deficient performance, Kiles suffered prejudice. 

Ybarra, 656 F.3d at 1001. 

E. Counsel failed to rehabilitate prospective jurors who expressed

discomfort with the death penalty but who still could have 

properly served. 

Not only did defense counsel allow pro-death jurors to serve, counsel made 

little attempt to rehabilitate jurors who expressed some opposition to the death 

penalty. Indeed, counsel often stipulated to their removal without questioning them 

at all. 

Constitutional principles carefully restrict the disqualification of jurors based 

on anti-death penalty views. The Supreme Court has made clear that the exclusion 

of prospective jurors from service solely because they had reservations about capital 

punishment violated capital defendants’ due process right not to be placed on trial 

before a “tribunal organized to return a verdict of death.” Witherspoon v. Illinois, 

391 U.S. 510, 521–22 (1968). The Court has reformulated this rule to forbid courts 

from disqualifying a juror on the basis of death-penalty opposition unless that 

opposition is so categorical that it “would prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and his 

oath.” Witt, 469 U.S. at 420. “Those who firmly believe that the death penalty is 

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unjust may nevertheless serve as jurors in capital cases so long as they state clearly 

that they are willing to temporarily set aside their own beliefs in deference to the 

rule of law.” Lockhart v. McCree, 476 U.S. 162, 176 (1986). 

A core obligation for capital counsel is to familiarize themselves “with the 

precedents relating to questioning and challenging of prospective jurors, including 

the procedures surrounding ‘death qualification’ concerning any prospective juror’s 

beliefs about the death penalty.” 2003 ABA Guideline 10.10.2(B); see also Morgan, 

504 U.S. at 719, 728. Counsel had a duty to “rehabilitate jurors who appear to have 

made it unmistakably clear that they would never vote for death by eliciting that, in 

some set of circumstances, such a juror could vote for the imposition of the death 

penalty.” Goodpaster, The Trial for Life, 58 N.Y.U. L. Rev. at 326. Here, however, 

rather than attempt to rehabilitate these jurors, Kiles’s counsel stipulated with the 

State to disqualify them. This constituted deficient performance. 

As far as the record shows, only five of the 142 prospective jurors were 

challenged for cause by one side.94 A majority of prospective jurors were dismissed 

via stipulation between Kiles’s counsel and the State. Many expressed the type of 

opposition to the death penalty for which a person may not constitutionally be 

excluded. For example, Prospective Juror 59’s questionnaire indicated that she 

would not administer the death penalty herself and that she did not consider the 

death penalty a moral and proper function of the justice system. Still, she specified 

that her decision to impose would depend on the facts and circumstances of the 

case, she would follow instructions, and she had no objections to the death penalty. 

She was asked no questions at voir dire, and no reason was given for her dismissal. 

There were no other obvious grounds for her dismissal. 

Counsel stipulated with the State to dismiss multiple jurors who, like 

Prospective Juror 59, indicated some opposition to the death penalty on their 

 

94 This count excludes prospective jurors who were excused for hardship reasons 

and challenges for cause that the non-moving party did not oppose. 

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questionnaires but may have been eligible to serve. Counsel made no effort to 

rehabilitate these jurors, which include Prospective Jurors 110, 136, and 138, even 

where they stated they could follow the law. For example, the prosecutor sent a list 

to Kiles’s counsel of prospective jurors who should be removed, including 

Prospective Jurors 110, 136 and 138, citing their opposition to the death penalty. 

Defense counsel appear to have agreed to removing all 22 prospective jurors 

suggested by the State without counter-proposing a single prospective juror, as all 

were struck without questioning at the day’s start with no names added. (Tr. Mar. 

15, 2006 at 3–4.) 

 Further, the court struck one prospective juror for cause because of defense 

counsel’s failure to adequately rehabilitate her. The State moved to strike 

Prospective Juror 56 because of her opposition to the death penalty. (Tr. Mar. 16, 

2006 at 3.) Defense counsel failed to rehabilitate her through voir dire and 

advocacy. (Tr. Mar. 16, 2006 at 3–5.) Though the prospective juror expressed that 

she did not personally believe in the death penalty, she also said she could impose 

it. (Tr. Mar. 7, 2006 at 92–93.) However, after the State argued that she should be 

dismissed for cause, VanDreumel argued only briefly against it, then quickly ceded 

that she would “leave this one to the Court’s discretion.” (Tr. Mar. 16, 2006 at 4.) 

In response, the court stated that he would dismiss the prospective juror because 

she was “just too conflicted . . . to be fair and impartial.” (Tr. Mar. 16, 2006 at 5.) 

Kiles’s counsel failed to attempt to rehabilitate jurors who were 

uncomfortable with the death penalty but could nevertheless have properly fulfilled 

their duties. Instead, counsel unreasonably stipulated to their removal, in violation 

of prevailing norms and Kiles’s constitutional rights. 

 Counsel’s failure to rehabilitate these jurors prejudiced Kiles. Had counsel 

successfully rehabilitated them, they would have either served on Kiles’s jury or 

the State would have had to use peremptory strikes on them. The resulting jury 

would have less resembled one “organized to return a verdict of death.” 

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Witherspoon, 391 U.S. at 521. The Supreme Court has underscored the importance 

of jurors with concerns regarding the death penalty—but still willing to impose it—

serving on a capital defendant’s jury. Where a “scrupled, yet eligible” juror is 

removed in violation of Witherspoon and Witt, it constitutes fundamental error, and 

prejudice is assumed. Gray v. Mississippi, 481 U.S. 648, 668 (1987). Had counsel 

rehabilitated these jurors and avoided the apparent Witherspoon violations, there is 

a “probability sufficient to undermine confidence in the outcome” that the 

proceeding’s outcome would have differed. Strickland, 466 U.S. at 694. 

F. Counsel failed to challenge the prosecutor’s discriminatory use of 

peremptory strikes to exclude an African-American prospective 

juror. 

Kiles’s counsel provided ineffective assistance in failing to object under 

Batson v. Kentucky, 476 U.S. 79 (1986), at the penalty-phase jury selection when 

the State used a peremptory strike to exclude an African American based on race. 

In Batson, the Supreme Court held that the use of peremptory challenges based on 

race violates the Equal Protection Clause. Id. at 89. 

The three-step analysis applied to a Batson challenge is well-known: “First, 

the defendant must make a prima facie showing that the prosecutor has exercised 

peremptory challenges on the basis of race.” Hernandez v. New York, 500 U.S. 352, 

358–59 (1991) (plurality opinion). To establish a prima facie case, a defendant must 

show “that the totality of the relevant facts gives rise to an inference of 

discriminatory purpose.” Batson, 476 U.S. at 94. A comparative analysis of seated 

and challenged jurors may raise an inference of discrimination. Green v. LaMarque, 

532 F.3d 1028, 1030 n.3 (9th Cir. 2008). The burden to make a prima facie Batson

showing is “minimal.” Johnson v. Finn, 665 F.3d 1063, 1071 (9th Cir. 2011). 

However, counsel must make a timely objection to the discriminatory strike. See

Doe v. Ayers, 782 F.3d 425, 432 (9th Cir. 2015). 

Counsel could have established prima facie discrimination, and the burden 

would have shifted to the prosecutor to “explain adequately the racial exclusion by 

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offering permissible race-neutral justifications for the strikes.” Johnson v. 

California, 545 U.S. 162, 168 (2005). The State must “(1) assert that specific, raceneutral reasons were the actual reasons for the challenged strikes, and (2) offer 

some evidence which, if credible, would support the conclusion that those reasons 

were the actual reasons for the strikes.” Shirley v. Yates, 807 F.3d 1090, 1104 (9th 

Cir. 2016). Finally, the court must determine whether the defendant has proven 

purposeful discrimination by a preponderance of the evidence. Hernandez, 500 U.S. 

at 359. 

At the time of Kiles’s trial, Batson was longstanding precedent. Further, the 

2003 ABA Guidelines obligated counsel to consider “challenges to the procedures 

for selecting the jury that would be available in any criminal case (particularly those 

relating to bias on the basis of race or gender).” 2003 ABA Guideline 10.10.2(A). 

Given the facts at Kiles’s trial, counsel’s notes, prevailing professional 

norms, and the “minimal” burden to prove a prima facie Batson case, it was 

unreasonable for counsel to fail to raise a Batson objection to the strike of 

Prospective Juror 96. See Doe, 782 F.3d at 432 (counsel performed deficiently 

where of the four African-American prospective jurors, the State struck one, with 

no objection from the defense, and one was empaneled). Kiles’s counsel’s notes 

indicate that, to their knowledge, out of 142 prospective jurors, four were African 

American. The State used a peremptory strike to remove one, Prospective Juror 96, 

without apparent cause. (ROA 895 at 4.) Defense counsel wrote “Batson” next to 

his name, but did not object on the record. (See Tr. Mar. 16, 2006; ROA 804 at 1.) 

Only one African-American person served on Kiles’s penalty-phase jury. 

There is no clear reason other than race for the State to have stricken AfricanAmerican Prospective Juror 96. While he indicated that he had a long-ago 

acquaintance who had been killed (Tr. Mar. 8, 2006 at 110–11), Juror 6 was seated 

despite his mother having been killed. (Tr. Mar. 7, 2006 at 7–8.) Prospective Juror 

96’s father-in-law was a corrections officer (Tr. Mar. 8, 2006 at 110–12), but Jurors 

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7 and 9 had close relatives in corrections and were still seated. (Tr. Mar. 7, 2006 at 

79–80.) Prospective Juror 96’s father, to whom Prospective Juror 96 had not spoken 

in years, had drug problems, but seated Juror 3 also had an immediate family 

member with drug problems. Finally, Prospective Juror 96 wrote on his 

questionnaire that some people may deserve the death penalty, but he was not sure 

if he would be comfortable imposing it. However, he noted that his decision to 

impose death would depend on the facts and circumstances of the case, that he 

would follow the law, and that he had no objections to the death penalty. When 

questioned by the State, he repeated that he would decide on a “case-by-case” basis. 

(Tr. Mar. 8, 2006 at 113, 116.) When questioned by the defense, he explained his 

uncertainty was because he did not know the facts of the case. (Tr. Mar. 8, 2006 at 

115–16.) Multiple jurors who were not African-American were seated even though 

they expressed similar discomfort with the death penalty; they include Juror 7, who 

called the death penalty “a necessary evil,” and Juror 16, who wrote that it could be 

a deterrent but that he worried about error. 

Kiles was prejudiced by counsel’s failure to object. To prove ineffective 

assistance for counsel’s failure to make a Batson motion, petitioner must show 

prejudice by “showing that there is a reasonable probability that the claim [counsel] 

failed to raise at trial would have prevailed, either at trial or on appeal.” Doe, 782 

F.3d at 432 (citing Strickland, 466 U.S. at 694). Given the facts at Kiles’s voir dire, 

and the absence of any reason other than race for the State’s peremptory strike, there 

is a reasonable probability that counsel would have prevailed on an objection to the 

State’s discriminatory use of peremptory strikes. Further, a Batson violation is 

structural, and a conviction must be vacated if a prosecutor’s strike was racemotivated. Turner v. Marshall, 121 F.3d 1248, 1254 n.3 (9th Cir. 1997), overruled 

on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc). 

Accordingly, had counsel objected and Kiles prevailed on appeal, his conviction 

would have been vacated. 

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G. Counsel failed to challenge the denial of a fair cross-section of the 

community in the venire. 

As laid out supra, Claim 2, a venire comprised of “a representative cross 

section of the community is an essential component of the Sixth Amendment right 

to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528 (1975). In this case, counsel’s 

failure to object to the lack of a fair cross-section was deficient, as Taylor was wellknown and long-established precedent at the time of Kiles’s penalty phase. The 

2003 ABA Guidelines also required counsel to consider challenges to the venire. 

2003 ABA Guideline 10.10.2(A). Kiles’s counsel’s notes indicate that, to their 

knowledge, there were four African Americans in the venire, out of 142 people. 

Counsel’s notes further indicated that counsel knew of the need for a racially 

representative venire. Given prevailing professional norms, it was unreasonable for 

counsel to fail to object to the denial of a fair cross-section. See Strickland, 466 U.S. 

at 688. 

Moreover, in July 2006, shortly after Kiles’s trial ended, an e-mail from a 

former Maricopa County Superior Court project manager informed Kiles’s counsel 

that the program the county had used since 2002 to select the venire was flawed: it 

was not updated with new census data, division juror usage, or ZIP codes. The 

program excluded people from certain ZIP codes due to an algorithm failure. An 

exclusion based on geographical location violated Kiles’s rights. See Lockhart, 476 

U.S. at 174 (noting that a group whose recognition would advance the purposes of 

the fair cross-section requirement may not be systematically excluded without a 

significant government interest). When Kiles’s counsel received this information, 

instead of seeking to address the violation in Kiles’s case, VanDreumel asked Clark 

to send her the questionnaires of seated jurors in Kiles’s case—for use in another 

case. 

Kiles was prejudiced by his counsel’s failure to object, as the failure to do so 

deprived Kiles of a fair trial. Strickland, 466 U.S. at 687. Like a Batson violation, a 

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violation of the fair cross-section requirement is structural error. United States v. 

Rodriguez-Lara, 421 F.3d 932, 940 (9th Cir. 2005), overruled on other grounds by

United States v. Hernandez-Estrada, 749 F.3d 1154 (9th Cir. 2014). Here, had 

counsel objected to the denial of the fair cross-section, “there is a reasonable 

probability that the claim [counsel] failed to raise at trial would have prevailed, 

either at trial or on appeal.” Doe, 782 F.3d at 432 (citing Strickland, 466 U.S. at 

694). Then, had Kiles prevailed on appeal, his conviction would have been vacated. 

Kiles was therefore prejudiced by his counsel’s deficient performance. 

H. Counsel failed to make a record as to the reasons underlying the 

removal of many prospective jurors. 

Finally, a complete record regarding jury selection is necessary to protect 

Kiles’s right to meaningful appellate review. See Gregg v. Georgia, 428 U.S. 153, 

195 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Dobbs v. Zant, 506 

U.S. 357, 358 (1993) (“We have emphasized before the importance of reviewing 

capital sentences on a complete record.”). 

In failing to make such a record, counsel performed deficiently and 

prejudiced Kiles. See Strickland, 466 U.S. at 688, 694; see also Claim 16, infra. A 

majority of prospective jurors were removed by stipulation between Kiles’s counsel 

and the State, without any reason provided on the record as to why they were 

removed. Many prospective jurors were removed without either side asking a single 

individual question at voir dire. The official juror sheet lists 23 people struck for 

cause, where even the fact of their removal—let alone the underlying reasons for 

their removal—appears nowhere on the record. (See ROA 895; see also generally 

Tr. Mar. 6, 2006; Tr. Mar. 7, 2006; Tr. Mar. 8, 2006; Tr. Mar. 15, 2006: Tr. Mar. 

16, 2006.) Thus, Kiles’s appellate lawyer lacked critical information to challenge 

his sentence, thereby compromising his appeals. 

In sum, counsel’s voir dire performance did not comport with objective 

standards of capital representation. The standards were developed to ensure capital 

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counsel’s performance adhered to prevailing Supreme Court law, and at the time of 

sentencing, counsel were obligated to know and follow these standards. Kiles’s 

counsel lacked the necessary knowledge and experience to select jurors who could 

and would fully and fairly consider Kiles’s mitigation evidence. Reasonably 

competent capital attorneys would have used the common tools to uncover 

impairments of jurors that would have removed them for cause, and information 

that would have enabled counsel to make informed peremptory strikes. Competent 

counsel would have objected to the State’s discriminatory strikes, objected to the 

lack of a fair cross-section, and ensured a complete record. Counsel’s deficient 

performance undermined Kiles’s constitutional right to an individualized 

sentencing by jurors capable of giving full effect and consideration to his mitigation 

evidence, entitling Kiles to relief. 

Claim Five 

Kiles was denied effective assistance of counsel at his aggravationphase proceedings because counsel failed to adequately challenge 

the alleged aggravating circumstances and otherwise defend against 

a death sentence. 

Kiles’s trial counsel failed to investigate and prepare adequately for the 

aggravation phase of trial, and as a result counsel failed to mount necessary 

challenges to the State’s aggravation case. Counsel’s deficient performance in that 

respect and others, both individually and cumulatively, prejudiced Kiles and 

thereby violated his rights under the Sixth, Eighth, and Fourteenth Amendments to 

the U.S. Constitution. Kiles incorporates by specific reference all facts, allegations, 

and arguments made elsewhere in this Petition. Kiles presented this claim below. 

(ROA 1189 at 32–35, 39–40, 46–48; PFR2 Dkt. 32–36, 39–41, 47–48.) 

A. Background on aggravation-phase proceedings. 

After a delay caused by, among other things, Arizona’s switch to jury 

sentencing, Kiles’s penalty phase began with his aggravation hearing in March 

2006. At the aggravation phase, the State sought first to prove that Kiles had 

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sufficient personal culpability in the deaths of Shemaeah Gunnel and LeCresha 

Kirklin to potentially be eligible for the death penalty. (Tr. Mar. 20, 2006 at 56–57 

(court laying out Enmund/Tison factors in preliminary jury instructions).) The State 

also alleged and sought to prove the following aggravating factors with respect to 

each victim: (1) Kiles was convicted of a prior felony involving the use or threat of 

violence, A.R.S. § 13-703(F)(2) (1988); (2) the homicide occurred in a manner that 

was “especially heinous, cruel or depraved,” id. § 13-703(F)(6); and (3) Kiles was 

convicted of one or more homicides during the commission of the offense, id. § 13-

703(F)(8).95 (ROA 503 at 1–2.) With respect to the deaths of Shemaeah and 

LeCresha, the State further alleged that Kiles was an adult at the time of the offense 

and that each victim was under 15 years of age. (ROA 503 at 2); see also A.R.S. 

§ 13-703(F)(9). 

 The State provided notice that it would offer two prior convictions to support 

the (F)(2) aggravating circumstance: an attempted aggravated assault conviction 

from 1984, and an aggravated assault conviction from 1986. (ROA 743 at 2.) Before 

the penalty phase, trial counsel argued that the attempted aggravated assault could 

not support the (F)(2) aggravating circumstance. (See ROA 743 at 4.) The trial court 

rejected that argument, even though the Arizona Supreme Court had agreed in State 

v. Williams that the crime of attempt could not satisfy the (F)(2) aggravating 

circumstance. 904 P.2d 437, 451 (Ariz. 1995); (Tr. Mar. 20, 2006 at 23). In so 

ruling, the trial court relied on the opinion in Kiles’s direct appeal upholding the 

attempted aggravated assault as a valid basis for the (F)(2) aggravating 

circumstance. (Tr. Mar. 20, 2006 at 23); see State v. Kiles, 857 P.2d 1212, 1224 

(Ariz. 1993). Trial counsel did not attempt to challenge the aggravated assault as a 

basis for the (F)(2) aggravating circumstance. (See Tr. Mar. 20, 2006 at 16–17.) 

 Further, trial counsel conceived of the aggravation phase as, in effect, a re-

 

95 The State alleged both that the homicides were especially cruel and that they were 

especially heinous or depraved. (See ROA 719 at 5–6.) 

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do of the guilt phase. (See Tr. Mar. 27, 2006 at 40 (counsel informing the court that 

they “have been parroting for this jury what took place in Yuma back in 2000); Tr. 

Mar. 27, 2006 at 42 (counsel asking court “that th[e] testimony and evidence to be 

adduced is the same that was adduced in Yuma [at the guilt phase].”).) Counsel did 

so despite the fact that the State was seeking to prove significantly different matters, 

for example that the killings were especially cruel, than it had proven at the guilt 

phase. But, because counsel were largely seeking to repeat the guilt phase, counsel 

conducted no investigation directed toward challenging the alleged aggravating 

circumstances.96 The record reflects no attempt to retain an expert for aggravationphase purposes, even though counsel knew the State intended to present expert 

testimony. For example, counsel noted on the record that they had not consulted 

with a crime-scene expert to counter the testimony of State’s expert Tom Bevel, 

even though “[t]here are experts out there who disagree with Mr. Bevel.” (See Tr. 

Mar. 27, 2006 at 41.) In fact—despite the centrality of Bevel’s testimony to the 

State’s case—counsel had not even interviewed Bevel for purposes of the 

aggravation phase.97 (Tr. Mar. 27, 2006 at 38.) This approach made no sense as an 

aggravation-phase plan for Kiles’s conviction in Gunnel’s death, where there was 

no question that Kiles had committed the killing.98 And, because of counsel’s focus 

on re-doing the guilt phase, counsel missed opportunities to start introducing the 

 

96 The most charitable justification for counsel’s focus on guilt-phase issues is that 

counsel were seeking to establish reasonable doubt on the Enmund/Tison findings 

for the deaths of the children. That, however, cannot justify a failure to investigate 

counsel’s ability to challenge the aggravators, especially as there was no doubt as 

to who killed Gunnel. 

97 Further, counsel did not re-interview guilt-phase witnesses. (See, e.g., Tr. Mar. 

22, 2006 at 56 (counsel noting that he had interviewed witness Larry Hawkins 

“some years ago”).) 

98 While this approach made better sense with respect to the deaths of the children, 

as counsel could focus on residual doubt (see, e.g., Tr. May 22, 2006 at 48–56), 

counsel needed an approach or approaches that minimized the likelihood of all three 

death sentences—not just of two out of three. 

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jury to Kiles’s mitigation. 

 After the completion of voir dire, discussed supra, Claim 4, the aggravation 

phase continued over 11 days. Two of the centerpieces of the State’s case that 

Gunnel’s death was “especially heinous, cruel or depraved” were pathologist 

Robert Mallon, M.D., and blood-spatter expert Tom Bevel, both of whom testified 

at Kiles’s guilt phase. See supra, Claim 3. Dr. Mallon had conducted the autopsies 

of Gunnel and LeCresha. (Tr. Mar. 21, 2006 a.m. at 4, 11; Tr. Mar. 21, 2006 at 8.) 

On direct examination, Dr. Mallon reviewed in detail each of Gunnel’s injuries, 

which included “extensive trauma mostly to the head and neck area, as well as the 

upper forearms. And in the rest of the body there wasn’t evidence of trauma.” (Tr. 

Mar. 21, 2006 a.m. at 15–26; Tr. Mar. 21, 2006 at 4–7.) The prosecutor walked Dr. 

Mallon through the severity of each wound, including that Gunnel’s skull exhibited 

a severe fracture that looked like “an eggshell that’s been broken in multiple 

pieces.” (Tr. Mar. 21, 2006 a.m. at 23.) The prosecutor also had Dr. Mallon confirm 

that Gunnel’s right forearm wound was “consistent with a defensive wound,” as 

well as that it would be “axiomatic that a person would have to be conscious to have 

a defensive wound.” (Tr. Mar. 21, 2006 a.m. at 21.) 

 On cross-examination, defense counsel did not question whether Gunnel’s 

forearm wound was indeed a defensive wound. (See Tr. Mar. 21, 2006 at 20.) 

Instead, counsel tried to get Dr. Mallon to acknowledge that it was possible for the 

forearm wound and one of the facial wounds to have resulted from the same blow. 

(See Tr. Mar. 21, 2006 at 20–21.) In response to that line of questioning, Dr. Mallon 

testified that 

[Gunnel] could have guarded herself against the first blow. 

She was conscious and was aware of what was going on, 

otherwise she wouldn’t have used her arm. . . . But that 

forearm was used. She was conscious and was aware, using 

that forearm in a defensive posture and as a defensive 

method. 

(Tr. Mar. 21, 2006 at 23.) Dr. Mallon also continued that Gunnel “could very easily 

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have sustained those kinds of frontal injuries and still remained conscious. That’s 

possible.” (Tr. Mar. 21, 2006 at 24.) Dr. Mallon then proceeded to testify, still on 

cross-examination, that Gunnel could have remained conscious for many of the 

wounds. (Tr. Mar. 21, 2006 at 24.) He added, “If I were guessing . . . I would say 

probably the blow to the forearm was the first one.” (Tr. Mar. 21, 2006 at 27.) 

 The State also prominently featured the testimony of Tom Bevel, the State’s 

blood-spatter expert, in its case for the (F)(6) aggravating circumstance in Gunnel’s 

death. Bevel described the blood stains visible in Gunnel’s living room, pointing 

out that there were blood stains, fairly low to the ground, on two different walls. 

(Tr. Mar. 27, 2006 at 62–69.) Bevel explained his opinion that the source of the 

blood on the walls had to be “lower toward the floor, as opposed to, for example, 

standing” in order to cause those blood stains. (Tr. Mar. 27, 2006 at 71.) He also 

testified that the blood stains on two different walls suggested “movement . . . 

usually the victim and/or the person that is delivering the blows.” (Tr. Mar. 27, 2006 

at 71.) Bevel also suggested that the blood on the pillowcase found in the east 

bedroom showed “some movement . . . where the blood source has had lateral 

motion.” (Tr. Mar. 27, 2006 at 72–73.) Bevel did not testify on these topics at the 

2000 guilt-phase proceedings, and defense counsel had not interviewed him prior 

to the 2006 proceedings to prepare themselves for cross-examination. (Tr. Mar. 27, 

2006 at 38.) Bevel further testified to topics he had addressed in his 2000 testimony, 

among them the blood spatter in the west bedroom, where the children were killed. 

(See, e.g., Tr. Mar. 27, 2006 at 82–85.) 

 The defense, with its focus on residual doubt and Kale Johnson’s 

involvement in the killing of the children, started its cross-examination by 

questioning Bevel about shoe impressions made in blood. (Tr. Mar. 27, 2006 at 99–

101.) Later, after having Bevel confirm that the crime scene had been altered before 

and while photographs were taken of it (see, e.g., Tr. Mar. 27, 2006 at 106–07, 112), 

the defense turned to the blood spatter in the room where the children were killed. 

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(Tr. Mar. 27, 2006 at 108–12.) Bevel also discussed the blood stain in the chair in 

the living room,99 before returning to the blood spatter in the west bedroom and the 

shoe impressions (see Tr. Mar. 27, 2006 at 112–18)—matters primarily relevant to 

the aggravating factors alleged in the deaths of the children. Counsel accepted 

Bevel’s testimony that the source of the blood on the pillowcase found in the east 

bedroom moved, but Bevel confirmed that he could not say how the blood source 

was moved. (Tr. Mar. 27, 2006 at 119.) Counsel then focused much of the 

remainder of cross-examination on questions regarding the bloody shoe 

impressions and blood found on Kale Johnson’s shoes and clothing. (See Tr. Mar. 

27, 2006 at 122–34.) 

 The State also had lead investigator Detective Brian Rodgers testify, as well 

as Larry Hawkins. (Tr. Mar. 22, 2006 at 31.) Hawkins recounted for the jury Kiles’s 

statement that he had killed Gunnel with a tire iron by striking her on the head after 

she had slapped him twice. (Tr. Mar. 22, 2006 at 37–38.) Hawkins testified that he 

did not remember where Kiles and Gunnel were when he struck her or what Kiles 

might have done after striking Gunnel, but he did say that Gunnel “asked him why 

was this happening and I think he said he struck her again.” (Tr. Mar. 22, 2006 at 

37–39.) The State had Hawkins review line-by-line his Silent Witness letter, which 

was admitted into evidence. (See Tr. Mar. 22, 2006 at 40–49; see also 2006 Trial 

Ex. 90.) On cross-examination, counsel tried to establish that Hawkins had based 

that information on a number of sources, not on Kiles’s statements. (See, e.g., Tr. 

Mar. 22, 2006 at 61.) 

 Notably, because counsel conceived of the proceedings as a re-do of the guilt 

phase, counsel allowed the 2000 guilt-phase testimony of several witnesses to be 

 

99 Having done insufficient investigation, counsel did not realize there were two 

similar-looking chairs in the living room and so asked Bevel some questions 

suggesting that a single chair had been moved around the living room. (Tr. Mar. 27, 

2006 at 113–14.) The State later pointed out counsel’s errors on redirect. (Tr. Mar. 

27, 2006 at 136–37.) 

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read into the record. (See, e.g., Tr. Mar. 22, 2006 at 28–30 (discussing testimony); 

Tr. Mar. 23, 2006 at 59 (testimony of Sandra Mercado); Tr. Mar. 29, 2006 at 113 

(testimony of Harman Burton); Tr. Apr. 4, 2006 at 4–5 (testimony of Cynthia 

Anderson).) Counsel even allowed the testimony of Kale Johnson to be read into 

the record (see Mar. 23, 2006 at 60; Mar. 27, 2006 at 142), even though that left 

them unable to cross-examine him on aggravation-specific issues. Kiles’s guiltphase testimony was also read into the record. (Tr. Mar. 23, 2006 at 54–55.) The 

defense offered no live witness testimony to the jury. (Tr. Apr. 4, 2006 at 4–5.) 

 After deliberations, the jury unanimously determined that the Enmund/Tison

factors were satisfied for the deaths of Shemaeah and LeCresha; however, for each 

victim, two jurors did not find that Kiles had actually killed the victim. (See ROA 

879 at 4.) For the deaths of Shemaeah and LeCresha, the jury found each of the four 

alleged aggravators proven. (ROA 879 at 5–10, 14–15.) 

With respect to Gunnel’s death, the jury found the (F)(2) aggravating 

circumstance proven, with unanimous findings as to each of the prior convictions 

proffered by the State. (ROA 879 at 11–12.) The jury also unanimously found the 

(F)(6) aggravating circumstance proven. (ROA 879 at 12.) The only component of 

that aggravator that the jury unanimously found was “cruelty.” (ROA 879 at 12.) 

Finally, the jury also found that the State had proven the (F)(8) aggravating 

circumstance. (ROA 879 at 12.) 

B. Trial counsel has a duty to make every effort to avoid a death 

sentence, including by investigating and contesting the 

aggravating circumstances alleged against Kiles. 

Under Supreme Court precedent, the Sixth Amendment right to effective 

assistance of counsel, and in turn the right to a fair trial, extends to the aggravation 

phase of trial. See, e.g., Rompilla v. Beard, 545 U.S. 374, 385–93 (2005) (counsel 

were ineffective in part for failing to investigate State’s aggravation case); see also 

Strickland v. Washington, 466 U.S. 668, 684 (1984). Capital-defense counsel have 

an obligation to contest aggravating factors alleged by the State against their client. 

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See, e.g., Correll v. Ryan, 539 F.3d 938, 947–48 (9th Cir. 2008) (finding deficient 

performance when, among other things, counsel failed to challenge three of five 

alleged aggravating factors); 2003 ABA Guideline § 10.11(A) (discussing 

counsel’s duty to investigate issues and seek information that establishes mitigation 

or rebuts aggravation); id. § 10.11(H) (requiring trial counsel to determine as 

quickly as possible what aggravating factors will be alleged and the evidence used 

to support them); id. § 10.11(I) (requiring counsel at all stages to consider whether 

evidence offered in aggravation is improper, inaccurate, misleading or 

inadmissible). 

Simply put, the aim of a capital-defense attorney at penalty-phase 

proceedings is to avoid the imposition of the death penalty. See, e.g., 2003 ABA 

Guideline 10.11(A) (emphasizing “continuing duty” to rebut aggravation and 

bolster mitigation); 1989 ABA Guideline 11.8.2(E) (requiring counsel to “develop 

a plan for seeking to avoid the death penalty”). Discharging that duty requires 

counsel to make every reasonable effort to contest or otherwise undercut the 

aggravating circumstances alleged by the prosecution. See Correll, 539 F.3d at 948. 

Kiles’s counsel, however, failed to investigate and make critical challenges, 

supported by Arizona Supreme Court precedent, to the alleged aggravating 

circumstances. Instead, counsel treated the aggravation phase as a re-do of the guilt 

phase. (See, e.g., Tr. Mar. 27, 2006 at 40–41.) Such failures rendered counsel’s

performance deficient and prejudiced Kiles. See Strickland, 466 U.S. at 688, 694. 

C. Counsel were ineffective for failing to effectively challenge the 

(F)(2) aggravating circumstance, especially as Kiles’s prior 

aggravated assault conviction was an invalid basis for that 

circumstance. 

The sole prior conviction currently supporting Kiles’s conviction under 

A.R.S. § 13-703(F)(2) (1988) is a 1986 conviction for aggravated assault. However, 

that conviction—under Arizona Supreme Court precedent that predated Kiles’s 

trial—is an invalid basis for the (F)(2) aggravating circumstance. Counsel were 

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ineffective for failing to challenge this proffered basis for the (F)(2) aggravating 

circumstance. (ROA 1189 at 46–48.)

1. Kiles’s 1986 conviction for aggravated assault does not 

qualify as a prior violent felony for the purposes of the (F)(2) 

aggravator. 

Prior to the penalty phase, the State alleged the (F)(2) aggravating 

circumstance, that “the defendant was previously convicted of a felony in the 

United States involving the use or threat of violence on another person.” (ROA 503 

at 1 (quoting A.R.S. § 13-703(F)(2) (1988).) In support, the State sought to prove 

that Kiles had committed two prior felonies that fell within the ambit of the 

aggravator: (1) attempted aggravated assault on April 17, 1984, and (2) aggravated 

assault on May 15, 1986. (ROA 637 at 2.) Trial counsel challenged the attempted

aggravated assault vigorously, arguing that under Arizona Supreme Court 

precedent, the conviction did not qualify for the purposes of the (F)(2) aggravating 

circumstance. (See ROA 743 at 1.) However, trial counsel did not challenge Kiles’s

prior conviction for aggravated assault, even though that conviction too could not 

support the (F)(2) aggravating circumstance as it was defined in 1989. 

In 1989, the (F)(2) aggravating circumstance required that the defendant have 

been “previously convicted of a felony in the United States involving the use or 

threat of violence on another person.”100 A.R.S. § 13-703(F)(2) (1988). The Arizona 

Supreme Court then defined “violence” for the purposes of (F)(2) as follows: “the 

exertion of any physical force with the intent to injure or abuse.” State v. Walden, 

 

100 “[I]n 1993, the [Arizona] legislature abandoned the (F)(2) language ‘use or threat 

of violence’ and replaced it with ‘serious offense.’” State v. Martinez, 999 P.2d 795, 

806 (Ariz. 2000). Kiles was convicted of crimes that occurred in 1989. To avoid a 

violation of the Ex Post Facto Clauses of the state and U.S. Constitutions, the 

aggravating circumstance as it was defined in 1989—involving “the use or threat 

of violence”—applies to Kiles’s case. State v. Schackart, 947 P.2d 315, 324–35 

(Ariz. 1997) (rejecting request to apply rewritten (F)(2) aggravating circumstances 

when capital crime occurred before change in statutory text, because doing so 

would create ex post facto problems); (see also ROA 503 at 1 (State alleging (F)(2) 

aggravating circumstance as it was worded in 1989)). 

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905 P.2d 974, 996 (Ariz. 1995) (citing State v. Fierro, 804 P.2d 72, 82 (Ariz. 1990), 

overruled on other grounds by State v. Ives, 927 P.2d 762 (Ariz. 1996)); see also, 

e.g., State v. Williams, 904 P.2d 437, 451 (Ariz. 1995) (applying this definition of 

“violence” when the capital crime and prior conviction supporting (F)(2) both 

occurred in 1990). 

When evaluating whether a prior conviction can support the 1989 (F)(2) 

aggravator, a court must look to whether the earlier felony “by statutory definition, 

involved violence or the threat of violence.” Schackart, 947 P.2d at 323 (emphasis 

added). Because “violence” requires “the intent to injure or abuse,” to qualify under 

(F)(2), the statutory definition of the earlier felony must require the mental state of 

intent. Id. If the statutory definition of the prior felony does not require that same 

mental state, then the felony is not a valid basis for the (F)(2) aggravating 

circumstances. Id. 

Further, when considering whether a defendant has a prior conviction whose 

statutory definition qualifies under (F)(2), courts can only consider a limited range 

of judicial documents. See State v. Rogovich, 932 P.2d 794, 800 (Ariz. 1997) 

(noting that court can review “relevant statutes, pleadings, jury instructions, and 

verdicts” when evaluating whether prior conviction qualifies as a basis for (F)(2) 

aggravating circumstance). However, testimony or other evidence from the victims 

of the prior crime must not be considered. See, e.g., State v. Van Adams, 984 P.2d 

16 (1999) (holding that court erred in considering testimony of victim of prior 

felony to establish basis of (F)(2) aggravating circumstance); State v. Gillies, 662 

P.2d 1007, 1018 (Ariz. 1983) (“We cannot allow what is, in effect, a second trial 

on defendant’s prior conviction to establish the existence of an A.R.S. § 13-

703(F)(2) aggravating circumstance.”). 

Kiles was convicted of one count of aggravated assault under A.R.S. 

§ 13-1204(A)(8), a subsection of the aggravated assault statute. (2006 Trial Ex. 140 

at 10.) Under § 13-1204(A)(8), aggravated assault occurs when a person “commits 

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assault as defined in § 13-1203 . . . while the victim is bound or otherwise 

physically restrained or while the victim’s capacity to resist is substantially 

impaired.” A.R.S. § 13-1204(A)(8) (1985). Assault under § 13-1203 can occur in 

one of three ways: (1) “Intentionally, knowingly or recklessly causing any physical 

injury to another person,” A.R.S. § 13-1203(A)(1); (2) “Intentionally placing 

another person in reasonable apprehension of imminent physical injury,” A.R.S. 

§ 13-1203(A)(2); or (3) “Knowingly touching another person with the intent to 

injure, insult or provoke such person,” A.R.S. § 13-1203(A)(3). In other words, 

assault can occur with the mental state of “intentionally,” “knowingly,” or even 

“recklessly,” for someone charged under § 13-1203(A)(1). 

Moreover, § 13-1204(A)(8) includes no mens rea requirement at all. See 

A.R.S. § 13-1204(A)(8) (1989) (aggravated assault occurs when a person “commits 

assault as defined in § 13-1203 . . . while the victim is bound or otherwise 

physically restrained or while the victim’s capacity to resist is substantially 

impaired.”). First, the subsection does not require that the person who commits the 

assault is the person who restrained the victim or limited the victim’s capacity to 

resist. In fact, the statute was derived from an older statute, which deemed assault 

aggravated “when committed by a person of robust health or strength upon one who 

is decrepit.” Matter of Appeal in Maricopa Cnty. Juvenile Action No. JV-123196, 

834 P.2d 160, 164 (Ariz. Ct. App. 1992). Decrepitude is not a condition caused by 

the person committing assault, and likewise the restraint of limited capacity to resist 

need not be caused by the person committing assault. Second, it is entirely possible 

to recklessly assault someone who—through no action or intent of the person 

committing the assault—is restrained or unable to resist.101 Accordingly, 

§ 13-1204(A)(8) does not provide the mens rea necessary for violence that is 

 

101 For example, under § 13-1204(A)(8), recklessly throwing a ball in the air—with 

no intent to injure or abuse—and hitting and injuring someone in a wheelchair 

constitutes aggravated assault. 

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missing from § 13-1203. 

Then, because aggravated assault under § 13-1204(A)(8) could well be based 

on a reckless act under § 13-1201(A)(1), the statutory definition of aggravated 

assault does not constitute a crime that necessarily involves violence—the intent to 

injure or abuse—for the purposes of the 1989 (F)(2) aggravating circumstance. 

Schackart, 947 P.2d at 323. 

The Arizona Supreme Court laid this out unambiguously when considering 

the (F)(2) aggravating circumstance as it existed in 1989. “If an assault is committed 

recklessly pursuant to § 13-1203(A)(1), the former (F)(2) factor cannot be 

established because the required mental state is lacking.” Id.; see also, e.g., Walden, 

905 P.2d at 996 (holding that aggravated assault did not provide basis for (F)(2) 

aggravating circumstance when it could have been committed recklessly); State v. 

McKinney, 917 P.2d 1214, 1230 (Ariz. 1996) (holding that “because [the 

defendant’s] prior conviction was for a crime that, on the face of the statute, might 

have been committed recklessly, it does not qualify as a crime of violence” for the 

purposes of the former (F)(2) aggravating circumstance). 

Consequently, unless the conviction reflects that the predicate assault was 

under § 13-1203(A)(2) or (A)(3)—meaning that the aggravated assault was 

committed knowingly or intentionally—then aggravated assault under § 13-

1204(A)(8) is not a valid basis for the (F)(2) aggravating circumstance.102 See 

Schackart, 947 P.2d at 323 (rejecting aggravated assault as support for (F)(2) when 

there was no proof as to which subsection of § 13-1203(A) was the basis for 

defendant’s prior conviction). As the Arizona Supreme Court erred in 1993 in 

upholding the attempted aggravated assault as a basis for the (F)(2) aggravating 

circumstance, so did it err with respect to the aggravated assault. See Kiles, 857 

 

102 Moreover, even under § 13-1203(A)(3), it is possible to commit assault with the 

intent to provoke or insult, which does not satisfy the intent requirement of 

“violence.” 

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P.2d at 1223–24. 

Here, the State did not specify whether Kiles was convicted under 

§ 13-1203(A)(1), or § 13-1203(A)(2), or § 13-1203(A)(3).103 (See 2006 Trial Ex. 

140 at 8–11.) There is no way to tell whether he was convicted of acting with intent, 

knowledge, or just recklessness. As a result, Kiles’s 1986 conviction for aggravated 

assault does not support the (F)(2) aggravating circumstance. 

2. Counsel performed deficiently and prejudiced Kiles in 

failing to challenge the 1986 conviction as a basis for the 

(F)(2) aggravator. 

Not only did counsel have a duty to investigate the alleged aggravators, 

counsel had a further duty to contest them on legal grounds as appropriate. See

Correll, 539 F.3d at 947–48. Counsel did make some legal challenges to the alleged 

aggravators, by arguing for example that Kiles’s prior conviction for attempted 

aggravated assault could not support the (F)(2) aggravating circumstance.104 (See 

ROA 743 at 1.) However, counsel failed to contend that the aggravated assault 

could not support the (F)(2) aggravating circumstance. Instead, when arguing that 

the attempted aggravated assault should be precluded, counsel conceded, “[t]he 

other one, the aggravated assault, clearly comes in.” (Tr. Mar. 20, 2006 at 16–17.) 

 

103 In fact, the judgment from 1986 originally failed to mention the assault statute 

altogether and instead mistakenly cited the statute for endangerment. (See Trial Ex. 

140 at 10 (listing conviction for A.R.S. § 13-1201).) In 1990, the superior court 

corrected the judgment to reflect that Kiles was convicted for assault under A.R.S. 

§ 13-1203, instead of for endangerment under A.R.S. § 13-201. Even then, the court 

provided no indication of which subsection of § 13-1201 was at issue. Powell 

sought to enter the 1990 order correcting the judgment into evidence, but then 

withdrew the proffered exhibit. (See Tr. Apr. 4, 2006 at 3–4.)

104 While the Arizona Supreme Court had previously upheld the aggravated 

assaulted as a valid basis for the (F)(2) aggravator in this case, it had held the same 

for the attempted aggravated assault conviction. See State v. Kiles, 857 P.2d 1212, 

1224 (Ariz. 1993). That ruling had not stopped counsel from challenging the latter 

conviction. (See Tr. Mar. 20, 2006 at 14–20.) Moreover, counsel did try, 

unavailingly, to challenge the authentication of the State’s evidentiary proof of the 

aggravated assault under the Arizona Rules of Evidence. (See Tr. Apr. 3, 2006 at 

6–9.) 

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Counsel were deficient for not disputing whether the aggravated assault 

could support the (F)(2) aggravating circumstance. Counsel had an obligation under 

the Sixth Amendment to contest aggravators. See White v. Ryan, 895 F.3d 641, 664, 

666 (9th Cir. 2018) (recognizing counsel’s obligation to challenge aggravating 

circumstances and holding counsel deficient for failing to do so). Here, counsel 

made no strategic decision not to contest the aggravating circumstance. Instead, 

counsel made a mistake of law. Counsel knew that the former version of the (F)(2) 

aggravator applied—they corrected the court’s proposed jury instruction to ensure 

that it reflected the statutory text at the time of Kiles’s crime. (See Tr. Mar. 16, 2006 

at 24.) Even so, counsel did not research adequately and find the Arizona Supreme 

Court cases making clear that Kiles’s conviction did not suffice under the old 

statutory text. Counsel wrongly believed that Kiles’s conviction for aggravated 

assault supported the (F)(2) aggravator. (See Tr. Mar. 20, 2006 at 16–17.) But a 

mistake of law is not a reasoned judgment; it is deficient performance. See Hinton 

v. Alabama, 571 U.S. 263, 275 (2014) (deeming counsel’s “inexcusable mistake of 

law” deficient performance); White, 895 F.3d at 666 (“A decision based on a 

misunderstanding of the law is not sound trial strategy.”). Accordingly, counsel’s 

error was unreasonable and deficient.105

Had counsel raised this challenge to the trial court, there is a reasonable 

likelihood that there would have been a different outcome. Because Arizona 

 

105 Independently, counsel had an obligation to investigate the basis for the State’s 

alleged aggravator. See 2003 ABA Guideline 1.1 cmt. (noting that counsel may 

need to mount a collateral attack on a prior conviction); 2003 ABA Guideline 10.7 

cmt. Had counsel investigated Kiles’s 1986 aggravated assault, upon information 

and belief counsel would have learned that Kiles’s attorney at the time had not 

interviewed the eye-witnesses to the incident before advising Kiles to plead guilty 

and that the 1984 attorney was potentially ineffective for failing to have done so. 

Trial counsel might have been able to challenge the conviction directly on 

constitutional grounds. (Notably, counsel for Kiles’s first state post-conviction 

proceedings had investigated the attempted aggravated assault and had filed a 

petition challenging that conviction. (See ROA 225 at 80.)) 

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Supreme Court precedent is clear that Kiles’s aggravated assault did not constitute 

a prior violent felony for the purposes of the (F)(2) aggravating circumstance as it 

existed in 1989, the trial court could not have submitted the conviction for the jury’s 

consideration. That, in turn, would have significantly changed the jury’s calculus, 

as Kiles no longer had a pattern of criminal convictions that predated his capital 

conviction. (See ROA 911 at 11–12 (noting that every juror found proven that Kiles 

was previously convicted of aggravated assault).) This was especially important 

because the defense made Kiles’s good behavior—the fact that he was not a future 

danger—central to the mitigation story (see Tr. Apr. 27, 2006 at 4–54 (defense 

expert testimony on Kiles’s exemplary behavior in prison))—and the improper 

consideration of a prior aggravated assault undercut that story.

106 In such 

circumstances, the fact that the jury improperly considered a prior aggravated 

assault conviction—indeed, a pattern of escalating criminal violence that the jury 

should not have seen—undermines the reliability of the verdict. See Strickland, 466 

U.S. at 694. 

Even if the trial court had rejected counsel’s challenge, trial counsel’s 

objection would have preserved the error for appellate review. Had the Arizona 

Supreme Court properly analyzed the issue instead of relying on its 1993 opinion 

in Kiles’s case, the court would have been forced to strike down the conviction as 

a basis for the (F)(2) aggravator. See infra, Claim 12. And, because the court 

determined that the attempted aggravated assault was likewise invalid as support, 

the court would have had to strike down the (F)(2) aggravator altogether. The 

Arizona Supreme Court would then have had to remand the case for a new jury 

sentencing so that a jury would have the opportunity to determine if the mitigation 

was sufficiently substantial to call for leniency, in light of the State’s diminished 

 

106 Further, because effective counsel would not only have challenged the 

aggravated assault as a basis for (F)(2), but also would have presented a 

significantly better mitigation story, see infra, Claim 6, the jury’s entire analysis 

would have been different. See infra, Claim 39. 

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aggravation case. See Ring v. Arizona, 536 U.S. 584, 589 (2002); see also id. at 

618–19 (Breyer, J., concurring) (concluding that “the Eighth Amendment requires 

individual jurors to make . . . a decision to sentence a person to death”); Claim 21, 

infra. At the very least, the Arizona Supreme Court would have had to reweigh the 

remaining aggravation, without the (F)(2) aggravator, against all of Kiles’s 

mitigation. See Styers v. Schriro, 547 F.3d 1026, 1028 (9th Cir. 2008) (per curiam) 

(citing Clemons v. Mississippi, 494 U.S. 738 (1990)). Either way, there can be no 

confidence in the reliability of Kiles’s penalty-phase proceeding. See Strickland, 

466 U.S. at 694. 

D. Counsel were ineffective for failing to investigate and adequately 

challenge the (F)(6) “especially heinous, cruel or depraved” 

aggravating circumstance. 

Because counsel treated the aggravation phase as a reprise of the guilt phase, 

counsel failed to conduct any investigation geared toward challenging the (F)(6) 

aggravator, in particular the State’s assertion that the killing of Gunnel was 

“especially cruel,” prejudicing Kiles. (ROA 1189 at 39–40.) 

Cruelty concerns primarily the victim’s pain and suffering before death. State 

v. Anderson, 111 P.3d 369, 394 n.19 (Ariz. 2005). To establish that a crime was 

“especially cruel,” the State must prove beyond a reasonable doubt that the “victim 

was conscious during the infliction of the violence and experienced significant 

uncertainty as to his or her ultimate fate.” Id. Moreover, the State must prove that 

“[t]he defendant [knew] or should have known that the victim would suffer.” Id.

In failing to investigate, counsel squandered the opportunity to develop and 

present a viable attack on the State’s evidence of cruelty in the killing of Valerie 

Gunnel. For Gunnel’s death, the State had to rely on some combination of the 

following evidence in its attempt to establish cruelty: (1) the testimony of the 

medical examiner, (2) evidence from the crime scene, as interpreted by bloodspatter expert Bevel and as described by lead investigator Rodgers, and (3) the 

testimony of Hawkins about statements purportedly made to him by Kiles. As the 

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State had relied on generally the same types of evidence to establish premeditation 

at the guilt phase, counsel should have known what they were facing as the 

aggravation phase began. Even so, counsel failed entirely in their duty to 

investigate. Because of that failure, the jury unanimously found that the State had 

proven cruelty in Gunnel’s killing.107 (ROA 879 at 11–12.) Had counsel adequately 

investigated and presented a challenge to the (F)(6) aggravator, there is a reasonable 

probability that at least one juror would have found otherwise. See Strickland, 466 

U.S. at 694.

1. Counsel unreasonably failed to investigate in preparation 

for a challenge to “cruelty” for the purposes of the (F)(6) 

aggravating circumstance. 

Just as with the guilt phase, counsel had a duty to investigate before the 

aggravation phase. 2003 ABA Guideline 10.11 (“[C]ounsel . . . have a continuing 

duty to investigate issues bearing upon penalty and to seek information that 

supports mitigation or rebuts the prosecution’s case in aggravation.”); see also 

Wiggins v. Smith, 539 U.S. 510, 523 (2003) (ineffectiveness inquiry looks into 

“whether the investigation supporting counsel’s decision [regarding penalty-phase 

presentation] was itself reasonable”). And, just as with the guilt phase, counsel 

failed to do so. In particular, counsel failed to consult with or retain experts who 

could have helped them combat the State’s case for cruelty. Indeed, counsel did 

nothing that could constitute investigation with respect to the State’s alleged 

aggravators, even though proving, for example, cruelty under the (F)(6) aggravator 

required a different focus than what occurred at Kiles’s guilt phase. There is nothing 

 

107 Because the jury did not unanimously find either heinousness or depravity (ROA 

879 at 11–12), the Arizona Supreme Court considered and upheld only the finding 

of cruelty on direct appeal, State v. Kiles, 213 P.3d 174, 188 (2009). Accordingly, 

Kiles presently details only counsel’s ineffectiveness with respect to that 

component of the (F)(6) aggravator. However, counsel also could and should have 

mounted a strong challenge to heinousness and depravity in Gunnel’s killing, by 

presenting evidence of the effects on Kiles of his intoxication at the time of the 

crime, see infra, Claim 6, and were ineffective for failing to do so. 

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to suggest, for example, that counsel re-interviewed any witnesses (see, e.g., Tr. 

Mar. 22, 2006 at 56), or adequately reviewed the crime-scene photographs (see Tr. 

Mar. 27, 2006 at 136–37 (State eliciting during redirect examination that defense 

counsel had misinterpreted the crime-scene photographs). 

Most critically, though, counsel once again failed to consult with any expert 

prior to the aggravation phase. This, despite the fact that counsel knew full well that 

much of the State’s case for (F)(6) hinged on expert testimony. See Hinton, 571 

U.S. at 273 (recognizing that in some cases the only available defense strategy 

demands expert assistance). That counsel did not even bother to contact an expert 

before the aggravation phase, even if only to understand the testimony that the 

State’s experts could offer, was deficient performance. See, e.g., Dees v. Caspiri, 

904 F.2d 452, 454 (8th Cir. 1990) (per curiam) (determining that counsel had a duty 

to “make a diligent investigation of the forensic evidence”); Correll, 539 F.3d at 

947–48 (recognizing that counsel’s duties extend to the State’s aggravation case); 

2003 ABA Guideline 10.11 cmt. (requiring counsel to “thoroughly investigate to 

determine whether [the State’s aggravation] can be excluded, rebutted, or 

undercut”). 

In light of the types of evidence that counsel knew the State would present in 

support of cruelty, counsel again should have consulted with the following experts:

Pathologist: The State’s medical examiner, Dr. Mallon, testified at the 

aggravation phase the Gunnel had a defensive wound on her right forearm, and, 

because of an ill-conceived cross-examination, stated conclusively that Gunnel 

must have been conscious for the blow that caused that wound. (Tr. Mar. 21, 2006 

a.m. at 21; Tr. Mar. 21, 2006 at 23–24.) Because counsel had done no reasonable 

investigation before the guilt or aggravation phases, defense counsel again never 

questioned Dr. Mallon’s premise: whether the wound was in fact defensive in 

nature. (See Tr. Mar. 21, 2006 at 20.) Instead, counsel tried repeatedly to establish 

that the same blow during which Gunnel incurred the wound could also have hit 

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her head and knocked her unconscious. (Tr. Mar. 21, 2006 at 21–25.) Counsel 

succeed primarily in getting Dr. Mallon to say, over and over, that Gunnel was 

conscious and aware for that part of the attack.108 (Tr. Mar. 21, 2006 at 21–25.)

As noted supra, Claim 3, however, counsel should have consulted an 

independent pathologist. See Thomas v. Clements, 789 F.3d 760, 769–71 (7th Cir. 

2015). Counsel’s disastrous cross-examination revealed a complete lack of 

understanding of Dr. Mallon’s findings and how best to address them, which a 

consultation with an independent pathologist could have cured. As a pathologist 

could have informed counsel and could have testified, there is no way to determine 

whether Gunnel’s forearm wound was a defensive wound. Gunnel may well have 

already been dead when the trauma to her arm occurred. 

That very basic piece of knowledge would have transformed defense 

counsel’s approach to Dr. Mallon’s testimony. Counsel conceded that Gunnel had 

a defensive wound and argued about how long she could have remained conscious 

after the first blow, undercutting Kiles’s testimony that Gunnel went down after the 

first blow. (See 2006 Trial Ex. 134 at 165–66.) By presenting independent expert

testimony or by fashioning a better cross-examination after consulting with an 

independent expert, counsel could instead have established that what Kiles said—

that Gunnel was not conscious after the first blow—was as consistent with the 

pathologist’s testimony as the State’s theory that Gunnel had remained conscious 

for some period of time. See Lindstadt v. Keane, 239 F.3d 191, 201–02 (2d Cir. 

2001) (holding counsel ineffective when counsel failed to educate themselves on 

the meaning of State’s expert’s findings). 

Blood-spatter expert: Just as counsel should have consulted with a blood-

 

108 Counsel’s attempt to get Dr. Mallon to say generally that there could have been 

fewer blows that injuries—because a single blow could have caused multiple 

injuries—also backfired. Dr. Mallon simply explained “And the opposite is true . . . 

[T]he blow in the back of the head could be as a result of one blow or three or four.” 

(Tr. Mar. 21, 2006 at 17.) 

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spatter expert before the guilt phase, they should have done so before the 

aggravation phase. See supra, Claim 3; (see also ROA 1189 at 32–35). Through 

Tom Bevel, the State elicited that the blood stains on more than one wall of the 

living room, where Gunnel was killed, showed “movement.” (Tr. Mar. 27, 2006 at 

71.) Bevel said the same for the pillowcase found in the east bedroom, where the 

State alleged that the attack on Gunnel began: the blood on the pillowcase evinced 

“some movement . . . where the blood source has had lateral motion.” (Tr. Mar. 27, 

2006 at 72–73.) 

An independent expert could have explained to counsel how to challenge 

these conclusions, both of which suggested that Gunnel was moving during the 

attack and was therefore conscious and perhaps aware of the uncertainty of her fate. 

See Anderson, 111 P.3d at 394 n.19 (defining “especially cruel”). Both conclusions 

likewise contradicted Kiles’s testimony. (See 2006 Trial Ex. 134 at 165–66.) First, 

an independent expert would have informed counsel that there is no way to tell 

whether the blood stains on the various living room walls all occurred during the 

attack. It is entirely plausible that some of the stains were caused by a flick of a 

hand with blood on it or the swing of another item with blood after Gunnel’s death. 

This is especially true as there was a pool of blood on the floor, and people such as 

Kiles and Kale Johnson were moving around the apartment long before the blood 

dried. (Tr. July 17, 2000 at 8–9 (Rodgers testifying that the blood in the living room 

was “still quite wet” when police were at the crime scene); Tr. July 17, 2000 at 190 

(Kiles testifying that he and Johnson ransacked the apartment looking for things to 

sell).) Similarly, while counsel accepted Bevel’s testimony that the source of the 

blood on the pillowcase moved (Tr. Mar. 27, 2006 at 119), an independent expert 

could have testified that it was plausible that the pillowcase instead moved across a 

blood source, for example the bloody mattress in the west bedroom (see Tr. Feb. 

21, 1989 at 37–38 (Rodgers testifying that the blood on the mattress was still wet 

when police arrived)). 

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Armed with such information, counsel could have vigorously challenged 

both the State’s assertions that (1) the attack started in the bedroom, where the 

pillowcase was found, and (2) Gunnel was conscious and moving around the living 

room. (See Tr. Mar. 20, 2006 at 69–70.) Moreover, an independent expert would 

have alerted counsel to the fact that Bevel’s methodology for determining the 

number of blows was incorrect, as discussed supra, Claim 3; had counsel pointed 

this out through a defense expert or through cross-examination, that testimony 

would have damaged Bevel’s credibility overall. (See, e.g., ROA 225 Ex. 59.) 

Because competent counsel has a duty to “understand the basics of the science 

involved” in expert testimony, “at least for purposes of cross-examining the State’s 

experts,” counsel’s failure was deficient. Richey v. Bradshaw, 498 F.3d 344, 362 

(6th Cir. 2007); see also 2003 ABA Guideline 1.1 cmt. (capital trial counsel “must 

be able to challenge zealously the prosecution’s evidence and experts through 

effective cross-examination”).

Counsel went into the aggravation phase having conducted no aggravationfocused investigation and entirely unprepared to reasonably challenge the State’s 

case for cruelty. Had counsel consulted with experts beforehand, counsel would 

have had the information necessary to develop an appropriate strategy for their 

presentation and to introduce at least reasonable doubt into the State’s presentation 

of the aggravating factors. Just as before, though, counsel’s “investigation into the 

State’s forensic evidence never started,” and so counsel were ill-equipped to make 

any kind of reasonable decision as to how to proceed. Elmore v. Ozmint, 661 F.3d 

783, 865 (4th Cir. 2011). But “[u]nder Strickland, counsel’s investigation must 

determine trial strategy, not the other way around.” Weeden, 854 F.3d at 1070. 

Because counsel conducted none of the investigation needed to determine strategy, 

the decisions they made as to how to contest the State’s aggravation case were 

neither informed nor reasoned. See Wiggins, 539 U.S. at 521; Bemore, 788 F.3d at 

1162–69.

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2. Because of the insufficient investigation and lack of 

preparation, counsel failed to mount an adequate challenge 

to the (F)(6) aggravator, thereby prejudicing Kiles. 

Counsel’s unreasoned decision to treat the aggravation phase as a second 

guilt phase—in general, the lack of preparation—left counsel scrambling in their 

attempt to defend against the State’s allegation that Gunnel’s death was especially 

cruel. Instead of corroborating Kiles’s testimony through expert testimony that 

Gunnel’s forearm wound could well have occurred after unconsciousness or postmortem, counsel had Dr. Mallon state over and over that Gunnel was conscious and 

aware past the first blow.109 (Tr. Mar. 21, 2006 at 23–4.) Counsel could have had a 

blood-spatter expert corroborate Kiles’s testimony, damage Bevel’s credibility, and 

undermine the theory that Gunnel moved around the apartment by eliciting 

testimony that the blood-stain evidence was consistent with Gunnel having fallen 

unconscious (and having remained unconscious) after the initial below. (See, e.g., 

ROA 225 Ex. 59.) Instead, counsel allowed Bevel’s testimony to suggest that 

Gunnel moved around the living room during the attack. (Tr. Mar. 27, 2006 at 62–

71.) In so doing, counsel performed deficiently. See Richey, 498 F.3d at 362; 

Elmore, 661 F.3d at 865. 

Moreover, because counsel indefensibly treated the aggravation phase as a 

guilt phase redux, they failed to challenge the lay-witness testimony that supported 

the State’s depiction of Gunnel’s killing as especially cruel. Notably, the defense 

did not object when Kale Johnson’s testimony was read into the record. (See Tr. 

Mar. 23, 2006 at 60; Mar. 27, 2006 at 141.) Indeed, defense counsel actively sought 

to have the transcript of Johnson’s testimony admitted into the record. (See Tr. Mar. 

 

109 As noted supra, Claim 3, counsel also could have confronted Dr. Mallon about 

his evolving testimony regarding defense wounds, in particular his increasing 

certainty over the years that Gunnel in fact had such a wound and that Gunnel was 

conscious after the initial blow. (Compare, e.g., Mallon Tr. Dec. 12, 1989 at 8 (such 

wounds “can be defensive wounds”), with Tr. July 13, 2000 at 105 (agreeing that 

arm wound was a defensive wound)).

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23, 2006 at 60; see also 2006 Trial Ex. 136.) In doing so, counsel sacrificed Kiles’s 

opportunity to confront Johnson, even though different issues were important at 

aggravation than had been dispositive at the guilt phase. (See ROA 1189 at 39–40.)

For example, at the guilt phase, counsel had attempted to get Johnson to agree that 

he had previously testified that his “fingerprints in blood are on the doorframe in 

Valerie’s bedroom.” (2006 Trial Ex. 136 at 168.) Johnson repeatedly said, “I don’t 

remember” and expressed confusion about the question, so counsel just moved on. 

(2006 Trial Ex. 136 at 168–69.) If counsel had properly prepared for the aggravation 

phase and had not unreasonably permitted Johnson’s prior testimony to come in, 

counsel could have elicited testimony about (or impeached him with) his August 

1994 affidavit. In that affidavit, Johnson stated under oath, “When I was in the 

apartment, I got some blood on my hands. I tried to get rid of it by wiping my hand 

on the inside frame of the apartment door.” (ROA 225 Ex. 45 at 2.) Counsel’s failure 

to elicit such testimony during the aggravation phase was deficient.110

Counsel’s unreasonable missteps with respect to the State’s case for cruelty 

prejudiced Kiles. The Arizona Supreme Court later highlighted the evidence that it 

believed supported that cruelty had been proven beyond a reasonable doubt: 

The evidence shows beyond a reasonable doubt that the 

murder of Valerie was especially cruel. Kiles admitted that 

Valerie remained conscious after the attack began, and the 

medical testimony regarding defensive wounds supported 

that conclusion. . . . A pillow with blood on it consistent 

with a source that continued to move was found in 

Valerie’s bedroom. A transfer stain consistent with a 

person running a bloody hand along a door was also 

identified. Blood spatter was found between eighteen and 

twenty-four inches from the ground, indicating that “the 

source of the blood would be lower toward the floor.” The 

transfer stain on the door, together with spatter on the lower 

part of the north and south walls of the living room, 

indicated that either the blood source or the attacker was 

moving. A piece of the jack itself was found in the bedroom 

 

110 Counsel should also have confronted Johnson as discussed supra, Claim 3, as 

the issues discussed in that section also mattered to aggravation. 

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with Valerie’s blood on it. This evidence directly 

contradicts Kiles’ trial testimony, when, contrary to his 

earlier admissions,111 he claimed that when he hit Valerie 

with the jack, she fell down in a living room chair and never 

got up. 

Kiles, 213 P.3d at 188. If counsel had investigated reasonably and presented a 

defense based on that investigation, counsel could have hammered back at nearly 

every piece of evidence later cited by the court. Had counsel performed reasonably, 

the “medical testimony regarding defensive wounds”112 would not have supported 

the conclusion that Gunnel had a defensive wound, but would have said that the 

trauma to Gunnel’s forearm was consistent either with a defensive wound or with a 

wound inflicted after loss of consciousness, or even with a wound inflicted after 

death. The bloody pillowcase would have suggested only that the pillowcase was 

moved while the apartment was ransacked (Tr. July 17, 2000 at 190), not that 

Gunnel moved after the attack began. Similarly, the blood stains in the living room 

would have been evidence of movement by someone at some time, plausibly after 

the attack was over, not movement by Gunnel during the attack. That the jack was 

found in the bedroom would have been immaterial, as much of the crime scene had 

been compromised by the time it was photographed. And the jury would have 

known that Kale Johnson left the transfer stain on the door (see ROA 225 Ex. 45 at 

2); Gunnel did not do so during the attack. 

 Perhaps most importantly, counsel would have neutralized much of the 

State’s expert and other testimony that contradicted Kiles’s claim and that therefore 

damaged his credibility. Kiles’s testimony was critical, in that it explained to the 

jury how this crime could have occurred without being especially cruel under 

Arizona law. Accordingly, bolstering Kiles’s credibility—instead of making 

 

111 The only contrary statement Kiles purportedly made was the one about which 

Hawkins testified. (See Tr. Mar. 22, 2006 at 35–39.) 

112 Even accepting as true Dr. Mallon’s testimony, Gunnel had only one defensive 

wound. (See Tr. Mar. 21, 2006 a.m. at 15–26.) 

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concessions that affirmatively damaged it—was essential to the defense case. See

Bennett v. Cate, 407 F. App’x 213, 215 (9th Cir. 2010) (“Because [the defendant] 

took the stand, it was critical to have any objective physical and forensic evidence 

to support his version.”). 

Had counsel investigated and prepared in accordance with their Sixth 

Amendment obligations, the jury would have been left with no “conclusive 

evidence that the victim was conscious during the infliction of the violence and 

experienced significant uncertainty as to [her] ultimate fate.” Anderson, 111 P.3d 

at 395 n.19. Practically every facet of the State’s case for cruelty would have been 

countered by equally compelling evidence from the defense. The State could not 

have proven beyond a reasonable doubt that Gunnel was conscious after the first 

blow or that she experienced any pain.113 See State v. Clark, 616 P.2d 888, 896 

(Ariz. 1980) (rejecting a finding of cruelty when there was insufficient evidence 

that the victims suffered pain). In such circumstances, there is a reasonable 

probability that at least one juror would have concluded that the State had not 

proven beyond a reasonable doubt that the killing of Gunnel was especially cruel. 

See Strickland, 466 U.S. at 694. Counsel were thus ineffective for failing to

reasonably challenge the (F)(6) aggravator with respect to Gunnel’s death. 

E. Counsel performed deficiently and prejudiced Kiles by failing to 

frontload mitigation at the aggravation phase. 

As the primary goal of a capital-defense attorney is to avoid a death sentence, 

counsel must take every reasonable opportunity to ensure that outcome. See 2003 

ABA Guideline 10.11 (“[c]ounsel at every stage of the case should take advantage 

of all appropriate opportunities to argue why death is not suitable punishment for 

their particular client”). One critical way of doing so is to ensure that the jury is 

 

113 This is not to suggest that proof beyond a reasonable doubt of consciousness 

alone would have sufficed to establish cruelty. See State v. Soto-Fong, 928 P.2d 

610, 627–28 (Ariz. 1996). 

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introduced to the defense’s mitigation story as early as possible during proceedings. 

In other words, counsel must “frontload” the mitigation. See Eaton v. Wilson, No. 

09-CV-261-J, 2014 WL 6622512, at *149 (D. Wyo. Nov. 20, 2014) (citing expert 

testimony on frontloading and calling the frontloading of mitigation “so crucial in 

a death penalty case”). This is especially important as there is “reason to believe 

that a number of jurors make up their minds about the defendant’s punishment even 

before they hear any evidence in the penalty phase.” Stephen Garvey, Aggravation 

and Mitigation in Capital Cases: What Do Jurors Think? 98 Colum. L. Rev. 1538, 

1543 (Oct. 1998). Here, given the near certainty that the State would be able to 

establish at least one aggravator for at least one victim in Kiles’s case, counsel had 

a duty to frontload mitigation for Gunnel’s death during the aggravation phase. See 

2003 ABA Guideline 10.11; see also Strickland, 466 U.S. at 688. 

 As the State had alleged Gunnel’s and the children’s deaths were especially 

heinous and depraved for purposes of the (F)(6) aggravator, trial counsel had an 

opportunity to frontload mitigation. Under Arizona law, the “terms ‘heinous’ and 

‘depraved’ focus on the defendant’s mental state and attitude at the time of the 

offense as reflected by his words and actions.” Anderson, 111 P.3d at 395 n.19. 

Because the State put Kiles’s mental state at issue, counsel had a clear opportunity 

to introduce evidence going to Kiles’s mental state that also previewed for the jury 

Kiles’s impairments. Indeed, the Ninth Circuit has specifically concluded that 

evidence of a defendant’s mental impairments can counter the State’s evidence that 

a crime was committed in an especially heinous manner under Arizona’s (F)(6) 

aggravator. Summerlin v. Schriro, 427 F.3d 623, 641–42 (9th Cir. 2005) (en banc). 

Counsel’s failure to frontload mitigation relating to Gunnel’s death was not 

strategic. Counsel did not even consider the possibility of frontloading mitigation. 

As counsel did not even make a conscious decision not to begin introducing 

mitigation at the aggravation phase, counsel’s performance is owed no deference as 

a matter of strategy. Cf. Wiggins, 539 U.S. at 521–22 (counsel’s decisions are due 

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deference only when informed by reasonable investigation). 

Had counsel considered introducing mitigation at the aggravation stage, 

counsel could have previewed for the jury a number of relevant themes that the jury 

later saw. See infra, Claim 6 (discussing mitigation available in this case). For 

example, counsel could have offered evidence of Kiles’s impulsivity, a major focus 

of the mitigation phase, to rebut the allegation of heinousness; similarly, counsel 

could have offered evidence of Kiles’s organic brain dysfunction to demonstrate 

Kiles’s state of mind around the time of the crime. (See, e.g., Tr. Apr. 25, 2006 at 

101 (defense expert testifying that homicides were, to a reasonable degree of 

medical certainty, attributable to Kiles’s impulsivity).) In fact, in Summerlin, the 

Ninth Circuit held that the “strong psychiatric evidence of Summerlin’s lack of 

impulse and emotional control and organic brain dysfunction could have provided 

significant mitigating evidence countering the State’s circumstantial evidence” of 

heinousness. 427 F.3d at 641–42. Kiles’s counsel could have done the same. 

Moreover, Kiles’s counsel could have started to introduce the jury to Kiles’s 

addictions and their effects on him. While counsel sporadically had witnesses touch 

upon Kiles’s drug use during the aggravation phase (see, e.g., Tr. Mar. 22, 2006 at 

67–68), no effort was made to start explaining to the jury the effects of those 

addictions on Kiles’s brain and mental state—including the effects of his druginduced psychosis—around the time of the crime (see, e.g., Tr. Feb. 21, 1996 at 

177–85). Counsel’s failure to do so was deficient performance. 

Kiles was, moreover, prejudiced by counsel’s failure. Counsel could have 

framed the jury’s understanding of Kiles’s crime from the outset in terms of his 

impairments, giving the jury and integrated understanding of both the crime and 

why it occurred. As the jurors learned about the crime, they would also have learned 

about Kiles’s mental illness and impairments. See Eaton, 2014 WL 6622512 at 

*149 (quoting expert testimony on how frontloading “help[s] the jury to understand 

[the defendant] as fully human as early as possible”). This approach would have 

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helped the jurors absorb Kiles’s ensuing mitigation presentation and use it to give 

context to the crime. While this may not have affected the aggravation-phase 

outcome, there is a reasonable probability that at least one juror, having heard the 

mitigation at the outset and throughout the penalty-phase proceedings, would have 

voted differently on the sentence for Gunnel’s death. Cf. Jackson v. Calderon, 211 

F.3d 1148, 1164 (9th Cir. 2000) (noting the importance of mitigation and finding 

prejudice from deficient performance with respect to mitigation when crime was 

“an unplanned encounter between a grossly intoxicated, originally unarmed 

defendant and a victim suddenly ending in death”). 

F. Counsel were ineffective for failing to properly object to Kiles’s 

restraints. 

Kiles’s counsel were deficient for failing to properly object to Kiles’s 

shackling, as well as for failing to ensure that Kiles’s restraints were not visible to 

the jury, and counsel’s deficient performance prejudiced Kiles.

Throughout penalty-phase proceedings, Kiles was forced to wear a leg 

brace—designed to lock up if he moved too quickly—and an electric stun belt 

around his waist. Kiles had to hold the leg brace in place at times when he was 

walking to prevent it from locking up as he moved. At least one juror saw Kiles’s 

physical restraints—including a belly chain with handcuffs—both when a door 

opened when he was waiting to come into the courtroom and when he was sitting 

at the defense table. 

As detailed supra, Claim 3, Kiles had a right under the Due Process Clause 

not to be tried wearing shackles unless there were no acceptable alternatives, 

because of the inherent prejudice of shackles. Holbrook v. Flynn, 475 U.S. 560, 

568–69 (1986). That right was intended to protect the presumption of innocence 

and the impartiality of the jury, preserve Kiles’s ability to assist counsel in his own 

defense, and to ensure the dignity of judicial proceedings. See Illinois v. Allen, 397 

U.S. 337, 344–45 (1970); see also supra, Claim 3. However, Ninth Circuit 

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precedent makes clear that even restraints that are not visible to the jury—namely, 

the electric stun belt—can undermine those rights and interests. See Gonzalez v. 

Pliler, 341 F.3d 897, 900 (9th Cir. 2003). 

Before Kiles’s aggravation phase, trial counsel objected to visible shackling 

and leg braces, but did not object to making Kiles wear the electric stun belt. (See

Tr. Feb. 14, 2006 at 41–43 (“I’m agreed with what they make him wear under his 

clothes. I just don’t want him to be hobbling in here with those leg things that lock 

up.”).) However, as detailed infra, Claim 8, even non-visible restraints such as the 

electric stun belt can have a devastating effect on, for example, a defendant’s ability 

to communicate easily with counsel. Gonzalez, 341 F.3d at 900 (noting that the use 

of a stun belt “raises all of the traditional concerns about the imposition of physical 

restraints”.) Accordingly, counsel had a duty to challenge the use of that restraint 

without an individualized finding of necessity just as much as counsel had a duty 

to challenge visible shackles. See id.; see also, e.g., Roche v. Davis, 291 F.3d 473, 

483 (7th Cir. 2002). Moreover, for the reasons infra, Claim 8, and supra, Claim 3, 

if faced with such a challenge, the trial court likely would not have required Kiles 

to wear a stun belt, because as even the court recognized, Kiles was no security 

threat. (Tr. Feb. 14, 2006 at 42 (court “[could not] recall any time that Mr. Kiles 

ha[d] been a security problem, or risk”).) 

Counsel’s aggravation-phase failure to protect Kiles’s due-process rights not 

to be restrained unnecessarily, in conjunction with counsel’s failure to ensure that 

Kiles’s restraints were not visible, was prejudicial. This is especially true because 

of the particular dangers of stun belts, see Gonzalez, 341 F.3d at 901, and the fact 

that at least one juror saw Kiles’s wearing chains around his waist. Had counsel 

properly protected Kiles’s rights, there is a reasonable probability that at least one 

juror would have voted differently. See Strickland, 466 U.S. at 694; see also State 

v. Gomez, 123 P.3d 1131, 1139–42 (Ariz. 2005) (reversing death sentence because 

capital defendant was shackled without necessary individualized finding). 

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G. Counsel were ineffective for failing to object to, or to request a 

curative instruction for, the prosecutor’s misconduct in opening 

and closing statements. 

During the aggravation phase, the prosecutor gave an opening statement that 

consisted largely of improper argument and gave a closing statement filled with 

vouching, mischaracterizations of the evidence, insults to the defense, and other 

misconduct. Counsel were ineffective for failing to object to the State’s closing and 

to request a curative instruction regarding the opening or the closing. See Zapata v. 

Vasquez, 788 F.3d 1106, 1112 (9th Cir. 2015). 

As discussed in detail infra, Claim 9, Powell used his aggravation-phase 

opening statement to lay out an improper argument, filled with vouching and other 

misconduct, for the jury. Throughout the statement, Powell repeatedly informed the 

jury of what “we know.” For example, he declared, 

February 9th, Thursday. What do we know about that day? 

We know that the defendant and Valerie did laundry. We 

know that Wade Ward . . . stopped by to visit. Stopped by 

the apartment to see Shemaeah and to talk to Valerie. And 

we also know that during that day the defendant stole 

Valerie’s food stamps; the food stamps that she used to feed 

her children. We then know that the defendant sold them so 

that he could purchase drugs, which he did, so that he and 

his friends could use drugs, which they did. 

(Tr. Mar. 20, 2006 at 67–68.) Powell continued in that vein, instructing the jurors 

as to what the State knew to be true—even though some of this information had 

been contested at the guilt phase—and therefore throwing the weight of the State 

behind the credibility and accuracy of certain testimony that was to come. See 

United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005) (prosecutor should 

not use the phrase “we know” unless summarizing evidence already admitted at 

trial). Powell further improperly vouched for the credibility of various pieces of 

evidence and misled the jury. (See, e.g., Tr. Mar. 20, 2006 at 79 (Powell telling the 

jury that Hawkins’s Silent Witness letter was “consistent with the physical 

evidence”)); see also United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) 

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(“A prosecutor has no business telling the jury his individual impressions of the 

evidence.”). 

Trial counsel repeatedly objected to the prosecutor’s improper argument (see 

Tr. Mar. 20, 2006 at 76, 79), and eventually moved for a mistrial (Tr. Mar. 20, 2006 

at 84). The court denied that motion, but failed to give—and counsel failed to 

request—a curative instruction as to the prosecutor’s vouching. (See Tr. Mar. 20, 

2006 at 91.) Given the obvious harm from the prosecutor’s vouching, counsel 

should have requested a jury instruction that the prosecutor’s comments on the 

veracity of the evidence or what the State knew to be true should be disregarded. 

Counsel knew full well how hard it would be for the defense “to unring this bell” 

(Tr. Mar. 20, 2006 at 87), and counsel were deficient for failing to request an 

instruction from the court to help them do so. See Strickland, 466 U.S. at 688. 

 Counsel failed also to object to most of the prosecutor’s closing, although 

that too was littered with instances of misconduct. See Claim 9, infra. Throughout 

his closing, Powell belittled the defense, calling it “this ruse” and dismissing the 

“defense story.” (Tr. Apr. 11, 2006 at 18, 22.) Powell even disparaged defense 

lawyers, proclaiming that “where defense attorneys make their money is arguing 

reasonable doubt.” (Tr. Apr. 11, 2006 at 39); see Wilson v. Sirmons, 536 F.3d 1064, 

1119 (10th Cir. 2008) (recognizing that a prosecutor’s attacks on defense counsel 

can constitute misconduct). Powell further misstated the evidence, just as he had in 

the guilt phase, for example, by asserting that Larry Hawkins’s Silent Witness letter 

said that after attacking Gunnel, “the defendant then went out into the living room 

and sat there.” (Tr. Apr. 11, 2000 at 25); see also supra, Claim 3; infra, Claim 9. 

But the letter did not even intimate that the attack had moved from room to room. 

(See 2006 Trial Ex. 90 at 1; see also Tr. Apr. 11, 2006 at 66.) Then, to corroborate 

his own misstatements of the evidence, Powell repeatedly announced to the jury 

that “we know,” for example, “that it was a prolonged beating [of Gunnel],” when 

such matters were in dispute. (See, e.g., Tr. Apr. 11, 2006 at 25); see also United 

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States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999) (“As a general rule, a 

prosecutor may not express his opinion of the defendant’s guilt or his belief in the 

credibility of government witnesses.”) (quoting United States v. Molina, 934 F.2d 

1440, 1444 (9th Cir. 1991). The prosecutor even closed by instructing the jurors as 

to exactly what they were going to do: “Twelve people are going to find 

unanimously that he killed.” (Tr. Apr. 12, 2006 at 25.) 

Even so, trial counsel failed to object to all but one instance of the 

prosecutor’s misconduct and failed to seek any kind of curative instruction. (See Tr. 

Apr. 11, 2006 at 16–84; Tr. Apr. 12, 2006 at 3–25.) Given the prosecutor’s 

concerted effort—starting in his opening—to mislead the jury as to the strength of 

the State’s evidence and to cement in the jury’s minds the credibility of State’s 

witnesses, that failure was deficient. See Zapata, 788 F.3d at 1112. 

Moreover, much of prosecutor’s improper argument went directly toward an 

attempt to establish that Gunnel’s death was especially cruel for the purposes of the 

(F)(6) aggravator. (See, e.g., Tr. Apr. 11, 2006 at 25.) The harm from that 

misconduct was only exacerbated by the fact that defense counsel said nothing 

regarding the evidence in his own opening (see Tr. Mar. 20, 2006 at 94–106),114

and, further, lauded Powell as “a very skilled lawyer” and as “a very good lawyer” 

who “knows what he’s doing” (Tr. Mar. 20, 2006 at 96, 98). Because of the 

prosecutor’s pervasive misconduct in opening and closing, there is a reasonable 

probability that absent counsel’s errors in failing to cure that harm at least one juror 

would have come to a different conclusion. See Strickland, 466 U.S. at 694. 

 

114 Except for the brief mentions of Powell, the defense team, the dates at issue with 

the crime, and the fact that Kiles would never be eligible for parole, counsel said 

nothing that was specific to Kiles’s case. (See Tr. Mar. 20, 2006 at 94–106.) Instead, 

perhaps reflecting the fact that he had not worked on the case for counsel said such 

things as, “During the course of the trial – and in any trial – we are here because of 

a dispute. We’re here because the State has a view of facts different than the 

defense. We’re here because things have happened outside of your view – outside 

of even your concern at this point – has [sic] brought us to this point, to this precise 

moment.” (Tr. Mar. 20, 2006 at 97.) 

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H. Counsel were ineffective for failing to object to the trial court’s 

erroneous instruction defining reasonable doubt. 

Counsel were ineffective in failing to object to the reasonable-doubt 

instruction given to the jury. The trial court instructed the jury that “[p]roof beyond 

a reasonable doubt is proof that leaves you firmly convinced that the alleged 

aggravating factor is proven.” (Tr. Apr. 11, 2006 at 7–8.) Later, the court instructed 

the jury that “conclusive evidence” of cruelty sufficed to establish the (F)(6) 

aggravator. (Tr. Apr. 11, 2006 at 13.) Even though counsel had, at the guilt phase, 

objected to the instruction lessening the standard of proof that the State had to 

satisfy (Tr. July 18, 2000 at 27), counsel neglected to do so at the aggravation phase. 

But the phrase “firmly convinced” reduced the State’s burden of proof to 

something less than reasonable doubt; it is akin to “clear and convincing.” See, e.g., 

State v. Perez, 976 P.2d 427, 442 (Haw. Ct. App. 1998), aff’d in part, rev’d in part 

on other grounds, 976 P.2d 379 (Haw. 1999). “[T]he reasonable-doubt standard is

indispensable to command the respect and confidence of the community in 

applications of the criminal law.” In re Winship, 397 U.S. 358, 364 (1970). “It is 

critical that the moral force of the criminal law not be diluted by a standard of proof 

that leaves people in doubt whether innocent men are being condemned.” Id. A 

lesser standard of proof, such as “firmly convinced” violates a defendant’s rights to 

due process under the Fifth and Fourteenth Amendments to the U. S. Constitution. 

See id. Given the defense’s focus on reasonable doubt throughout its presentation 

(see, e.g., Tr. Apr. 11, 2006 at 76), there is a reasonable probability that the 

proceeding would have had a different outcome if the jury had been properly 

instructed on the definition of reasonable doubt. See Strickland, 466 U.S. at 694. 

I. Counsel were ineffective for failing to ensure that a complete 

record was made of aggravation-phase proceedings. 

As discussed in Claim 16, infra, Kiles’s counsel permitted significant 

portions of the aggravation phase to go unrecorded. Counsel did so despite Kiles’s 

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specific request that a record be made of all proceedings (see, e.g., Tr. Aug. 6, 1999 

at 13), and despite the need for meaningful appellate review, see Gregg v. Georgia, 

428 U.S. 153, 197–98 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). 

In doing so, counsel performed deficiently and prejudiced Kiles. See Strickland, 

466 U.S. at 688, 694. 

J. Counsel’s numerous errors, individually and cumulatively, 

undermined the reliability of Kiles’s aggravation phase. 

Each instance of deficient performance described above is prejudicial was on 

its own, but counsel’s aggravation-phase errors caused even more pronounced 

prejudice. When evaluating an ineffective-assistance claim, this Court must 

consider the cumulative impact of counsel’s various errors. As the Supreme Court 

has stated, “In making this [prejudice] determination, a court hearing an 

ineffectiveness claim must consider the totality of the evidence before the judge or 

jury.” Strickland, 466 U.S. at 695; see Williams (Terry) v. Taylor, 529 U.S. 362, 

397–98 (2000); see also White, 895 F.3d at 645 n.1 (ruling that the district court 

erred by granting a certificate of appealability on a portion of an ineffective 

assistance claim because the petitioner “has but a single claim regarding his right 

to the effective assistance of counsel at the penalty phase”); Martin v. Grosshans, 

424 F.3d 588, 590–92 (7th Cir. 2005) (“[E]ven if [trial counsel’s] errors, in 

isolation, were not sufficiently prejudicial, their cumulative effect prejudiced 

Martin’s defense.”); Alcala v. Woodford, 334 F.3d 862, 882–83 (9th Cir. 2003) 

(granting relief on basis of cumulative impact of multiple errors by counsel); 

Lindstadt, 239 F.3d 191, 205 (2d Cir. 2001) (granting relief where petitioner was 

prejudiced by cumulative effect of errors committed by trial counsel); Harris ex rel. 

Ramseyer v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995) (holding that cumulative 

impact of numerous deficiencies in defense counsel’s performance was prejudicial, 

warranting habeas relief). 

Here, had counsel not performed deficiently, the jury would not have heard 

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that Kiles had a prior “violent” felony conviction for aggravated assault, but would 

instead have been introduced to his brain dysfunction and addictions, giving some 

sort of context to the crime. Moreover, the jury would have heard that the State’s 

case that Gunnel’s killing was cruel came down to possibilities and conjecture, but 

certainly nothing that could establish beyond a reasonable doubt that she was 

conscious and in pain for a prolonged beating or that she experienced great 

uncertainty as to her fate. Had counsel performed competently, there is at least a 

reasonable probability that the outcome of the aggravation phase would have been 

different. See Strickland, 466 U.S. at 694.

K. The state post-conviction court’s decision that Kiles did not state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. 

The state post-conviction court’s reasoned decision on this claim stated that, 

with respect to counsel’s failure to challenge the 1986 aggravated assault as a basis 

for the (F)(2) aggravating circumstance, Kiles had shown neither deficient 

performance nor prejudice. (See ROA 1214 at 2.) 

The state-court merits ruling on this claim is contrary to and/or an 

unreasonable application of clearly established federal law for two distinct reasons. 

See 28 U.S.C. § 2254(d)(1). As noted supra, Claim 3, the only standard the state 

post-conviction court ever stated with respect to the prejudice prong of an 

ineffectiveness-of-counsel claim was an outcome-determinative standard: whether 

“the outcome would have been different.” (ROA 1214 at 2.) That standard, 

however, is contrary to or an unreasonable application of the prejudice standard in 

Strickland. See, e.g., Thomas, 789 F.3d at 767–68 (holding that court’s “would have 

led to a different result” prejudice standard was an unreasonable application of 

Strickland); Martin, 424 F.3d at 592 (holding that the state court’s prejudice 

inquiry—whether “the result of the proceeding would have been different”—was 

contrary to Strickland). Moreover, the state court’s failure to consider the 

cumulative effect of the prejudice from the various challenges to aggravators 

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foregone by trial counsel was likewise an unreasonable application of or contrary 

to clearly established Supreme Court precedent. See, e.g., Strickland, 466 U.S. at 

694–95 (“The defendant must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different. . . . In making this [prejudice] determination, a court hearing an 

ineffectiveness claim must consider the totality of the evidence before the judge or 

jury.”); White, 895 F.3d at 671; see also, supra, Claim 3. 

In addition, the ruling that there was no showing of deficient performance 

was an unreasonable application of Strickland and Wiggins, which unambiguously 

provide that unreasoned “decisions” based on no investigation or preparation are 

afforded no deference. See Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. 

To the extent that the state court made a determination of fact on this front, that too 

was unreasonable. See 28 U.S.C. § 2254(d)(2); see also, e.g., Taylor v. Maddox, 

366 F.3d 992, 999–1001 (9th Cir. 2004) (discussing ways in which § 2254(d)(2) 

can be satisfied). As the state-court record makes clear—indeed, as counsel 

effectively acknowledged on the record—counsel did no investigation to prepare 

specifically for the aggravation phase. (See, e.g., Tr. Mar. 22, 2006 at 56; Tr. Mar. 

27, 2006 at 38.) Given this failure to investigate, counsel’s choices to forego a 

meritorious challenge to the (F)(2) aggravator and to mount an uninformed defense 

to the (F)(6) aggravator, among other errors, were necessarily deficient. 

The finding of no prejudice was likewise unreasonable, both because the state 

court used the improper legal standard as described above, but also because the state 

court—to the extent it made a factual finding—relied on an unreasonable 

determination under § 2254(d)(2). See Taylor, 366 F.3d at 1001 (“[W]here the state 

courts plainly misapprehend or misstate the record in making their findings, and the 

misapprehension goes to a material factual issue that is central to petitioner’s claim, 

that misapprehension can fatally undermine the fact-finding process, rendering the 

resulting factual finding unreasonable.”). Here, the state post-conviction court 

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ignored the prejudice from the improper finding of the (F)(6) aggravator in coming 

to this conclusion (see ROA 1214 at 1–2), rendering it unreasonable within the 

meaning of § 2254(d)(2). 

Because Kiles has satisfied § 2254(d), this Court’s analysis is

“unconstrained” by AEDPA deference.115 See Williams, 529 U.S. at 405–06. 

L. Conclusion. 

For the reasons stated above, Kiles’s counsel provided ineffective assistance 

at Kiles’s aggravation phase, thereby prejudicing Kiles. The state-court decision is 

no bar to this Court’s de novo review of this claim, and Kiles is entitled to relief. 

Claim Six 

Kiles was denied effective assistance of counsel at his mitigation 

phase when his counsel failed to investigate and present powerful 

mitigating evidence, among other significant errors.116 

Counsel’s failure to investigate and present powerful mitigating evidence, 

and counsel’s other significant errors, violated Kiles’s rights under the Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates 

by specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. He presented this claim below in similar form. (ROA 1189 at 23–25, 48–

61; PFR2 Dkt. 1 at 23–25, 48–61.) 

A. A capital defendant must receive an individualized sentencing 

after a full and fair consideration by the jury. 

“There is no more important hearing in law or equity than the penalty phase 

of a capital trial.” Correll v. Ryan, 539 F.3d 938, 946 (9th Cir. 2008) (quoting 

Gerlaugh v. Stewart, 129 F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concurring 

 

115Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

See Martinez, 566 U.S. at 9; Strickland, 466 U.S. at 688, 694. 

116 As noted earlier, Kiles uses “mitigation phase” to describe the phase at which 

the defense put on its case for leniency and “penalty phase” to describe his 

aggravation and mitigation phases together. 

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and dissenting)). The Eighth and Fourteenth Amendments enshrine the guarantee 

of individualized sentencing and due process in the capital context. See, e.g., 

Lockett v. Ohio, 438 U.S. 586, 602–05 (1978) (plurality opinion). Accordingly, a 

capital sentencer must be afforded the opportunity to assess “the character and 

record of the individual offender.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) 

(quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)). As the Supreme 

Court has explained, 

If the sentencer is to make an individualized assessment of 

the appropriateness of the death penalty, “evidence about 

the defendant’s background and character is relevant 

because of the belief, long held by this society, that 

defendants who commit criminal acts that are attributable 

to a disadvantaged background, or to emotional and mental 

problems, may be less culpable than defendants who have 

no such excuse.” 

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 

538, 545 (1987) (O’Connor, J., concurring)), abrogated on other grounds by Atkins 

v. Virginia, 536 U.S. 304 (2002). The assistance of competent and qualified counsel 

is necessary to safeguard these fundamental principles. E.g., Strickland v. 

Washington, 466 U.S. 668, 685 (1984) (“[C]ounsel’s skill and knowledge is

necessary to accord defendants the ‘ample opportunity to meet the case of the 

prosecution to which they are entitled.’”) (quoting Adams v. United States ex rel. 

McCann, 317 U.S. at 275, 276 (1942)). 

B. Kiles’s personal history. 

Kiles was born on May 21, 1961, to Imojean Long Kiles and Alvie Kiles, Sr., 

in Yuma, Arizona. (ROA 225 Ex. 1 at 1.) Imojean met Alvie, Sr. when she was 16 

years old. (ROA 225 Ex. 37 at 3.) A few years later, after his marriage to another 

woman was annulled, Alvie, Sr. and Imojean married in 1952. (ROA 225 Ex. 37 at 

3.) She did not love him and married him only to escape her own violent and erratic 

father. (ROA 225 Ex. 37 at 3.) Her mother had died when she was 12. Alvie, Sr. 

sent a letter from California to Imojean, proposing and stating that he needed to be 

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married by the year’s end. She agreed, and they married two months later. 

Imojean and Alvie, Sr.’s relationship, marred by alcoholism and mental 

illness, was chaotic and tenuous from the start. Alvie, Sr. drank often. (ROA 225 

Ex. 37 at 3.) The two fought constantly. (ROA 225 Ex. 39 at 1.) Alvie, Sr. began 

hitting Imojean whenever she said something he did not like; she quickly learned 

that he was mean and violent. (ROA 225 Ex. 37 at 4.) After just four months of 

marriage, he beat her so hard she was left with scars on both of her legs. (PFR2 Dkt. 

27 Ex. 21 at 21.) She fled back to her abusive and alcoholic father’s house in Yuma, 

as even the violence of that home was preferable to her life with Alvie, Sr. (PFR2 

Dkt. 27 Ex. 21 at 21.) Alvie, Sr. followed her, and she agreed to get back together 

with him on the condition that they move to Yuma, which they did. (PFR2 Dkt. 27 

Ex. 21 at 21.) This was the first go-around in an unending cycle of Imojean and 

Alvie, Sr. separating and reuniting, a pattern that recurred for the duration of their 

relationship. (ROA 225 Ex. 37 at 7.) 

When they married, Imojean was unaware of Alvie, Sr.’s addiction to alcohol 

and its effects. He initially drank heavily only on the weekends, when he was not 

working. (PFR2 Dkt. 27 Ex. 21 at 20.) But his drinking worsened over time. Alvie, 

Sr. drank heavily for decades, only stopping when he had to near the end of his life 

by medical conditions. (PFR2 Dkt. 22 Ex. 3 at 3.) His alcoholism was likely both 

an inheritance and a coping mechanism. He had come from a family full of people, 

including his mother and siblings, battling alcohol and drug addictions. (ROA 225 

Ex. 37 at 5.) 

Likely unbeknownst to Imojean, Alvie, Sr. had also been struggling with 

serious mental-health issues. One month before he proposed to her, he was 

diagnosed with Schizoid Personality Disorder. (ROA 225 Ex. 66 at 4.) At the height 

of the Korean War, when the military was desperate for servicemen, U.S. Navy 

medical officers deemed him unfit for service because of his mental illness and 

discharged him. (ROA 225 Ex. 66 at 5.) There were other indications that he was 

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unwell, like reports of his heavy alcohol intake and persistent headaches. 

Alvie, Sr. never wanted to have children, while Imojean wanted a big family. 

(ROA 225 Ex. 37 at 4.) She miscarried three times before giving birth to a child 

that was stillborn; it was the son that she had desperately wanted. (ROA 225 Ex. 37 

at 4.) Alvie, Sr. disposed of the baby without getting Imojean’s consent or giving 

her the chance to say goodbye. (ROA 225 Ex. 37 at 4.) Their first surviving baby 

was Janell Kiles, born in 1956. (ROA 225 Ex. 37 at 4.) 

About three years after Janell was born, Imojean’s own mental illness 

became unmanageable. Imojean had suffered with mental illness for years, which 

went untreated because of her impoverished upbringing and dysfunctional 

childhood. As an adult, her illness was exacerbated by the abuse and unhappiness 

of her marriage. (ROA 225 Ex. 37 at 1–2, 4.) Eventually, Imojean crumbled into a 

state of complete emotional distress; she mentally decompensated so thoroughly 

that she had to be hospitalized. (ROA 225 Ex. 37 at 4.) Her doctor insisted she stay 

in bed, and Janell was sent to California to stay with Alvie, Sr.’s mother, whom 

Janell described as “mean.” (ROA 225 Ex. 37 at 4; ROA 225 Ex. 39 at 4.). Imojean 

was prescribed anti-anxiety medication and antidepressants. (ROA 225 Ex. 60 at 

28.) Following her mental breakdown, Imojean and Alvie, Sr. continued to fight 

viciously; she coped by downing alcohol and taking prescription medication. (ROA 

225 Ex. 37 at 4; ROA 225 Ex. 39 at 4; ROA 225 Ex. 60 at 14–15.)

While Imojean drank alcohol daily and ingested medication, a combination 

that took an irreparable physical toll, she and Alvie, Sr. conceived another child. 

(ROA 225 Ex. 60 at 14–15.) Because of her history of difficulty in carrying babies 

to term, she did not expect her baby to survive. Thus, she ignored signs of distress, 

like her nonstop illness, and continued to drink throughout her pregnancy. 

However, the child did survive, and Kiles was born in 1961, five years after his 

sister and only surviving sibling. (ROA 225 Ex. 1 at 1.) 

Kiles began suffering with asthma as an infant. (ROA 225 Ex. 60 at 3.) He 

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was prescribed medication (potentially harmful stimulant drugs) as treatment both 

as a child and as an adult. (ROA 225 Ex. 60 at 3, 31–32) At one point, Kiles 

experienced life-threatening breathing difficulties—traumatic to a young child—

and was tossed in the back of the family car and rushed to medical treatment. (PFR2 

Dkt. 23 Ex. 19 at 5.) His parents were incapable of properly tending to Kiles’s 

serious health problems due to their own struggles with addiction and mental 

illness. Instead of getting Kiles actual treatment for his asthma, his family told him 

to hold a Chihuahua in his lap to “help” him breathe when he struggled for air. 

Kiles was hit by a moving vehicle shortly before he turned five and rushed 

to the doctor. He had to stay in bed for weeks after. Following this, he suffered from 

regular nosebleeds and severe headaches. (ROA 225 Ex. 60 at 4.) Also as a child, 

Kiles was struck in the head with a baseball bat and lost consciousness. Kiles 

suffered chronic headaches into adulthood, and even in prison years later, he 

requested ibuprofen nearly every day for his debilitating headaches. In addition, as 

a child Kiles wet the bed; he endured bouts of sleep disturbance, nightmares, and 

sleepwalking into his teenage years. 

Alvie, Sr. and Imojean were seemingly good financial providers. They 

worked a variety of jobs throughout Kiles’s childhood. Kiles’s father did 

maintenance for U.S. Border Patrol and ran a cleaning business. (ROA 225 Ex. 60 

at 17.) His mother did domestic work; she also worked at the local country club, a 

marine base, and a cafeteria. (PFR2 Dkt. 27 Ex. 21 at 14–15.) Though his parents 

worked hard and tried to maintain a veneer of normalcy outside the home, their 

struggles with alcohol addiction and mental illness shaped their parenting behind 

closed doors. (ROA 225 Ex. 60 at 27.) 

Within their home, Alvie, Sr. and Imojean were ill-equipped to provide a 

safe, nurturing environment conducive to child-rearing. The home in which Kiles 

and his sister grew up was an unstable, dangerous place. (ROA 225 Ex. 60 at 28–

29.) It was filled with vicious fights and violence. (ROA 225 Ex. 60 at 15.) Alvie, 

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Sr. continued to physically assault Imojean and did so in front of Kiles and Janell. 

(ROA 225 Ex. 39 at 1.) He “cold-cocked” her on multiple occasions. (ROA 225 Ex. 

42 at 1.) The cruelty in their relationship was not one-sided. Imojean mistreated 

Alvie, Sr. (ROA 225 Ex. 38 at 4.) They beat each other up, and threatened each 

other with weapons, including hatchets and butcher knives. (PFR2 Dkt. 20 Ex. 2 at 

1; Tr. May 9, 2006 at 57.) One time, Imojean drew a knife on Alvie, Sr. (Tr. Feb. 

20, 1996 at 34.) In another incident after he got another woman pregnant, she hit 

him in the head with a telephone. The assault was so brutal that Janell felt ill at the 

sight of her father’s bloody head. (ROA 225 Ex. 39 at 1.) 

Imojean’s alcoholism was one of the greatest sources of turbulence in the 

family, contributing to the home’s unpredictability and chaos. (ROA 225 Ex. 61 at 

10.) Her drinking was a source of tension with her husband and emotional distress 

for her children. (ROA 225 Ex. 61 at 10.) Alcohol fueled her temper, causing her 

to lash out at those around her, including her son and daughter. Kiles hated that his 

mother drank and he often had to deal with the aftermath, especially when she was 

in public in a drunken stupor and he had to retrieve her from a bar and put her to 

bed. (ROA 225 Ex. 61 at 10–11.) He missed many Mondays at school because he 

did not want to have to deal with what people said about his mother’s behavior over 

the weekend. (Tr. May 16, 2006 at 26.) 

Kiles and Janell were tormented by their parents’ behavior toward each other, 

and at times threw themselves in between their parents. (ROA 225 Ex. 60 at 15.) 

The children were, quite literally, caught in the middle; they often had to pull their 

parents off each other to get them to stop hurting one another. (PFR2 Dkt. 22 Ex. 3 

at 1.) This incubation of terror had dire effects on Kiles and Janell. The constant 

fighting terrified them. Kiles and Janell called the police on multiple occasions to 

beg them to stop the fighting, out of fear of what their parents might do to each 

other. (PFR2 Dkt. 22 Ex. 3 at 1.) Despite the children’s pleas, the police usually did 

not come. (PFR2 Dkt. 22 Ex. 3 at 1.) 

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When Kiles reached a certain age, he tried to protect his mother from his 

father by telling his father not to hit her anymore; that made his mother proud 

despite the fact that it thrust Kiles further into his parents’ dysfunctional 

relationship. (ROA 225 Ex. 37 at 6; ROA 225 Ex. 60 at 22.) Kiles also had to protect 

his father from his mother at times. One time, Kiles had to stop Imojean from 

pouring hot grease on Alvie, Sr. while he slept. (Tr. May 9, 2006 at 57.) 

The parents were not only violent to each other, they were violent to the 

children as well. Kiles and Janell were disciplined harshly. They were beaten if they 

did not finish all of the food on their plates, or if they got dirty playing outside. 

(PFR2 Dkt. 22 Ex. 3 at 2.) Their father derived a sinister pleasure from beating his 

kids. (ROA 225 Ex. 37 at 6.) Alvie, Sr. left marks and scars on Kiles and Janell 

after whipping them with belts and cords. (ROA 225 Ex. 60 at 16.) Imojean also hit 

her kids and threw things at them. (ROA 225 Ex. 60 at 16.) After one particularly 

severe whipping, Janell was left covered with welts. (PFR2 Dkt. 22 Ex. 3 at 2.) And 

though Alvie, Sr. favored Janell over Kiles, that did not protect her from the brutal 

attacks. He whipped Janell hard enough with a rope that he drew blood. (PFR2 Dkt. 

27 Ex. 21 at 18.) 

Kiles’s father also verbally and physically assaulted and belittled Kiles. 

(ROA 225 Ex. 60 at 16.) Alvie, Sr. never wanted a son, and he was jealous of the 

close relationship that Imojean and Kiles shared. (PFR2 Dkt. 27 Ex. 21 at 20.) He 

rarely took any interest in Kiles, but when he did, it was violent. Alvie, Sr. once 

pulled a gun on his own son. (ROA 225 Ex. 60 at 16.) 

Alvie, Sr. and Imojean also had ongoing, repeated extramarital affairs, which 

they wielded as weapons against each other. (ROA 225 Ex. 39 at 4.) Alvie, Sr. 

constantly, and accurately, accused Imojean of sleeping with other men. (ROA 225 

Ex. 42 at 1.) However, he also serially cheated on her, including with members of 

her own family. (ROA 225 Ex. 54 at 5) Alvie, Sr. had an affair with Imojean’s sister 

Darnella, which Imojean discovered while pregnant with Kiles; Alvie, Sr. and 

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Darnella even had a child together. Additionally, Alvie, Sr. twice impregnated his 

niece, the daughter of another one of Imojean’s sisters. 

In 1970, when Kiles was eight years old, Imojean filed for and was granted 

a divorce for reasons of cruel treatment causing great mental pain and anguish. 

(ROA 225 Ex. 17 at 4, 8.) After his parents’ separation, Kiles lived with his mother, 

and his father had visitation rights. (PFR2 Dkt. 27 Ex. 21 at 21.) Post-divorce, 

Imojean and Alvie, Sr. continued to fight. Alvie, Sr. did not want Imojean to have 

a life without him, so he stalked her, parking his car outside of her house to watch 

her. (2006 Trial Ex. 174 at 22.) One time, he saw her boyfriend’s car parked outside 

and smashed all of the windows. (PFR2 Dkt. 22 Ex. 3 at 4.) Even so, Imojean and 

Alvie, Sr. remarried in 1976. Kiles was 15 years old, and his parents’ reunion felt 

like an intrusion into the less chaotic life that Kiles and his mom had created. 

Imojean regularly threw wild parties at the family home that lasted late into 

the night. (PFR2 Dkt. 22 Ex. 3 at 4.). People drank, danced, and stripped their 

clothing off. (Tr. Apr. 26, 2006 at 93.) The next morning, with the adults passed out 

from drinking too much, Kiles (who was used to alcohol because of his 

grandfather’s babysitting style) walked through the house, taking sips of alcohol 

from cups left out. Kiles and other children were left unsupervised at these parties, 

but they were privy to their parents’ and other adults’ behavior. 

These parties were symptomatic of the family’s complete lack of appropriate 

sexual boundaries. At the parties, Kiles’s aunt, Darnella Long, regularly performed 

sexual dances, during which she moaned and simulated sex, in view of Kiles and 

the other children. When Kiles was a teenager, Darnella threatened Imojean by 

telling Imojean that she was going to sleep with Kiles, her nephew. Later, Darnella 

got into a fight with Kiles’s sister Janell because Darnella tried to sleep with Janell’s 

husband. Kiles’s uncle and father figure Thom Long was known for sexually 

propositioning family members and for his fixation with watching his pet rabbits 

have sex; he constantly invited Kiles to watch. Kiles himself began having sexual 

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experiences as young as age six or eight, likely because of the sexual abuse he 

experienced. 

Throughout his childhood, Kiles was sometimes left to the care of others. 

These “caretakers” variously abused and neglected Kiles. At the age of four or five, 

his grandfather babysat him and regularly plied him with alcohol. (Tr. May 11, 2006 

at 38.) Kiles spent time with his mother’s brother Thom, who was famous in town 

for stripping naked and crowing like a rooster. Kiles was left unsupervised with 

Janell, who sought him out as a target after suffering through her own beatings. She 

regularly kicked him in the face, knocked him down, and otherwise assaulted him. 

By the time Kiles was a pre-teen, Janell had introduced him to drugs. 

Kiles and his sister shared traumatic experiences growing up in the same 

dysfunctional home, and the damaging effects of their childhood manifested 

throughout their lives in ways both similar and different. Their troubles stemmed 

from a profound lack of parental instruction in appropriate socialization. (ROA 225 

Ex. 60 at 27.) They were deprived of stable primary caregivers who modeled 

appropriate behavior. For example, Alvie, Sr. was a compulsive shoplifter, and he 

taught Janell to shoplift because it was a fun thing to do. (ROA 225 Ex. 54 at 5.) 

This behavior haunted Janell from the time she was a young girl through adulthood, 

as she racked up an extensive history of legal problems related to theft and other 

charges, and leading to frequent arrests and incarceration. Even when Janell was 

young and her parents gave her everything she could ever want, she still 

compulsively stole. 

Imojean described her daughter as being “trouble since the day she was 

born.” Janell’s life-long legal troubles were both caused complicated by a relentless 

battle with addiction. Burdened by a genetic predisposition to alcoholism and 

shaped by a traumatic childhood, she began drinking when she was just a girl. Janell 

and Kiles were allowed to drink at home; their mother purchased wine coolers and 

beer for them. (ROA 225 Ex. 39 at 5.) As a teenager, Janell was already drinking 

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heavily; she was ultimately suspended from high school for drinking and fighting, 

and she did not graduate. (ROA 225 Ex. 39 at 5.) But Alvie, Sr. and Imojean had 

their own problems to deal with, and they never got Janell any help. 

It was also during high school that Janell turned to drugs as a means of coping 

with her intolerable life. (ROA 225 Ex. 39 at 5.) Janell introduced her younger 

brother Kiles to drugs as well—a decision she would later regret. (ROA 225 Ex. 39 

at 5.) Janell also ran away from home multiple times. (ROA 225 Ex. 39 at 5.) 

In an eerie repeat of Imojean’s history decades earlier, a teenage Janell 

attempted to escape her miserable home life by running away with a man. She 

married him and moved to California. She conceived a child, but the marriage only 

lasted for a few months. (ROA 225 Ex. 39 at 5–6.) Janell then returned home and, 

a few years later, married Larry Hawkins, a fellow addict who physically abused 

and mistreated her. (ROA 225 Ex. 39 at 6.) During one assault, he knocked her front 

teeth out. Kiles, just a teenager at the time, tried his best to defend his sister from 

Hawkins’s brutality. (ROA 225 Ex. 39 at 6.) 

Janell suffered from cocaine addiction and spent years in and out of prison 

as a result. (PFR2 Dkt. 27 Ex. 21 at 22–23.) The disease of addiction took 

precedence over everything else for Janell, including her children. (ROA 225 Ex. 

39 at 7.) Janell ultimately had three daughters, all of whom were raised by Imojean 

and other family members because Janell was unable to care for them herself. 

(PFR2 Dkt. 27 Ex. 21 at 25.) At least one of her children was born cocaine-addicted 

and taken away by the state. (PFR2 Dkt. 27 Ex. 21 at 26.) 

Kiles, too, failed to escape the long-lasting effects of family dysfunction. 

Imojean developed an emotionally unhealthy bond—one that was hyper-dependent 

and pathological—with her son. Everyone in the extended family and in their small 

town knew that Kiles was close with his mother and that Janell was close with her 

father; in the Kiles family, each parent had a favorite child. (PFR2 Dkt. 27 Ex. 23 

at 9.) In a similar vein, Imojean declared that her son was the only man in her life 

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(ROA 225 Ex. 37 at 5), and that she loved him more than she loved God. Alvie, Sr. 

was jealous of Imojean and Kiles’s close relationship. (ROA 225 Ex. 37 at 5.) Later, 

Imojean’s boyfriend was so disturbed by their relationship that the boyfriend 

accused Imojean of sleeping with her son. (ROA 225 Ex. 37 at 7.) 

Kiles also struggled in school, likely because of his brain damage and 

resultant attention-deficit issues. He had no parents to advocate for him, and he 

attended a small-town school system ill-equipped to provide for students whose 

limitations were not immediately apparent. Eventually, Kiles was put into a 

vocational program in high school. He worked at a store for much of the day, and 

received failing grades in the classes he did take, with no academic assistance. 

Kiles learned early on, long before he could make reasoned decisions for 

himself, that alcohol and substances were a means to self-medicate and deal with 

unpleasant emotions and experiences. (ROA 225 Ex. 60 at 22–23.) The promise of 

escape through alcohol and other mind-altering drugs was irresistible in a world 

where he had been exposed daily to circumstances that threatened his existence and 

over which he had no control. (ROA 225 Ex. 60 at 22–23.) The mental instability 

that resulted from living in constant fear, desperation, and loneliness further 

exacerbated the effects of both Kiles’s inherited and acquired mental and physical 

impairments. The combination allowed his addiction to flourish.

Kiles maintained a facade of functionality, even as his dependence on 

substances increased. He graduated high school, worked low-wage jobs, and made 

a brief attempt to attend college. (ROA 225 Ex. 4.) But he struggled in the absence 

of structure, and Kiles realized he was going nowhere; there were no opportunities, 

and he was falling prey to his addictions. Drugs were heavily trafficked in Yuma 

and thus were readily available to feed his habit. 

Growing up in Yuma provided its own threats to Kiles’s development. Yuma 

is famously an agricultural community and, for long periods, carried with it a 

serious risk of environmental-toxin exposure. The pesticides used when Kiles was 

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a child in the 1960s and 1970s were toxic to a child’s development, and many have 

since been banned. Kiles picked fruit for local farmers as a youth, and he spent time 

playing in fields with friends, picking fruit off trees and eating it. He fished out of 

the Colorado River, which runs through Yuma, and ate the fish that he caught. The 

Colorado River was also polluted from pesticides and likely provided Yuma’s 

drinking water.117 Yuma is even home to a Superfund site: the Yuma Marine Corps 

Air Station, where Kiles’s mother worked. All of these factors affected Kiles’s 

environment and potentially his development. 

Struggling to find a place for himself, Kiles saw the military as a viable 

opportunity to make something of himself and get out of Yuma. He knew that if he 

stayed in Yuma, he would be doomed to a life he knew he didn’t want for himself. 

He wanted something better. He had relatives, including his father, who had served 

in the armed forces; he saw examples in other young men from the community who 

served and returned with good, stable employment. He wanted that for himself. 

Kiles joined the Air Force and moved out of Yuma to a base in Spokane in 

an effort to regain control of his life. His effort was not supported by everyone in 

his family. Imojean could not handle her son’s departure, and she suffered another 

mental decline because of the separation from her son. (ROA 225 Ex. 60 at 17.) 

After he left, she drank excessively, cried continuously, and slept in his bed. (ROA 

225 Ex. 60 at 17.) 

Kiles enlisted with the full intent and the earnest desire to stop using alcohol 

and drugs and to embark on a military career. He envisioned a whole future for 

himself, a full and stable life, including a plan to retire from the military and become 

 

117 Yuma experienced excessive pesticide use and studies from the 1960s showed 

that the Colorado River in Yuma was so polluted by agricultural pesticides that it 

constituted a “serious hazard” to fish and users of its water, which was used for 

domestic consumption. See EPA, Review and Evaluation Report on Pesticide 

Pollution of the Lower Colorado River (May 1973), https://nepis.epa.gov/Exe/ 

ZyPDF.cgi/91022Q8X.PDF?Dockey=91022Q8X.PDF at 2, 4. 

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a firefighter. The structure of the military helped Kiles focus on his future, and he 

excelled in some respects in the Air Force. He was selected to return to Yuma to 

recruit high school students and march in a parade. But the grip of alcoholism—a 

progressive disease worsened by his genetic predisposition to addiction and brain 

damage—proved too strong. (ROA 225 Ex. 60 at 25.) Because of his addiction, 

Kiles endured an earlier-than-wanted departure from the service and faced a 

humiliating return to Yuma. 

Kiles’s father, Alvie, Sr., had become ill while Kiles was a teenager, and for 

years, Alvie, Sr. dealt with a myriad of health issues. (ROA 225 Ex. 60 at 17–18.) 

While Kiles was away in the military, his father took a turn for the worse, which 

greatly upset Kiles. (ROA 225 Ex. 57 at 2.) Shortly after Kiles returned from the 

military, Alvie, Sr. died. Even though Kiles had endured countless beatings and 

humiliations at his father’s hand, the death devastated Kiles. (ROA 225 Ex. 60 at 

28–29.) Kiles was aware that his father resented him, but he was still desperate for 

his father’s affection. Now, he would never have a chance to gain his approval. 

Kiles’s ejection from the Air Force in 1983 took a psychological toll on him, 

and derailed his sole plan for success. Kiles was clinically depressed; he felt 

defeated, hopeless, and lost, and he coped the same way he learned to cope during 

his childhood—by escaping with substance abuse. (ROA 225 Ex. 39 at 5; ROA 225 

Ex. 60 at 35–36.) Friends and family noticed an immediate difference in Kiles after 

his discharge; “he was empty inside.” He began associating with other addicts. In 

the ensuing years, Kiles’s life devolved into a pattern of increased drinking and 

drug dependence linked to legal troubles, multiple incarcerations, difficulty 

maintaining employment, and general instability. 

In an attempt to escape his environment, Kiles fled Yuma again for Las 

Vegas in 1985. There, he was involved in an automobile collision, where he lost 

consciousness. Despite the head injury and continued substance use, he had been 

having a modicum of success. He had two jobs and was living with relatives, when 

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his mother—grieving the loss of her on-again-off-again husband—threatened to kill 

herself if Kiles did not return to Yuma. Kiles was so torn about the prospect of 

returning to Yuma that he wept while debating his options with his cousin. 

Once forced to return to Yuma, Kiles’s emotional instability worsened by the 

day. Every time Kiles attempted to dig himself out, he failed. By this time, his 

addiction was dictating his behavior. Every impulsive reaction or decision—the 

ones that often led to an altercation or a legal problem—occurred while Kiles was 

high. He managed to stay clean when in the structure of a prison setting, but he 

struggled when in the community, particularly considering the superficial 

interventions and limited level of treatment available in Yuma at the time. The 

parole officer to whom Kiles was assigned did not make Kiles submit to regular 

urinalysis testing, as required by his conditions of release. He also allowed Kiles to 

visit the “Black Elks” Club, a well-known local watering hole, full of partying 

alcoholics.118 Kiles attended some AA/NA meetings and made small steps of 

progress. He strived for sobriety and began to realize the detrimental effects of 

growing up in a family of people struggling with addiction. However, he was unable 

to truly address his addiction without outside support and while still stuck in Yuma. 

In early 1989, Kiles encountered Kale Johnson at a local park. Johnson, who 

was also an addict, urged Kiles to shoot up cocaine. The following weeks were one 

extended drug and alcohol binge, during which Kiles was not eating or sleeping, 

and was both losing weight and losing touch with reality. In a moment of 

desperation, he asked his mother to get him into the hospital for help, but he was so 

impaired that he could not follow through. At her wit’s end, Imojean tried to 

convince her son’s parole officer to find Kiles in violation of his parole, so that 

Kiles would end up back in jail and could get some help for his debilitating 

 

118 In Yuma, there were two Elks Clubs, and they were divided by race. They were 

referred to as the “Black Elks” and the “White Elks.” Yuma was an extremely 

racially segregated place, and racism was pervasive. 

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addiction. Rather than investigating further and facilitating the appropriate services, 

the parole officer was not concerned, even though by that time Kiles was 

incoherent, rambling, and paranoid—in the throes of a drug-induced psychosis. 

(ROA 225 Ex. 38 at 2–3; ROA 225 Ex. 41 at 1.) 

C. A defendant’s right to a full mitigation investigation and 

presentation necessitates effective counsel at the mitigation phase 

of trial. 

As discussed above, a defendant’s right to place before the sentencer all 

relevant evidence during the mitigation phase of sentencing hinges on the right to 

effective counsel. Kiles’s counsel had a duty to ensure that the jury heard the full 

scope of mitigating evidence, including Kiles’s full social history. The 

consideration of the defendant’s life history is a “constitutionally indispensable part 

of the process of inflicting the penalty of death.” Woodson, 428 U.S. at 304. 

In Strickland, the Supreme Court outlined the standard for determining when 

counsel has provided ineffective assistance. See, e.g., Claim 2, supra. Under 

Strickland, counsel is constitutionally ineffective if (1) “representation fell below 

an objective standard of reasonableness,” and (2) “there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” 466 U.S. at 687–88, 694. When evaluating prejudice, a court must 

consider “the totality of the evidence—both that adduced at trial, and the evidence 

adduced in the habeas proceeding[s].” Wiggins v. Smith, 539 U.S. 510, 536 (2003) 

(quoting Williams v. Taylor, 529 U.S. 362, 397–398 (2000)). 

The Supreme Court has since repeatedly applied the requirements of 

Strickland and the Sixth Amendment to the capital-sentencing context. It is clearly 

established federal law that counsel provides ineffective assistance where he or she 

“fail[s] to investigate and to present substantial mitigating evidence to the 

sentencing jury.” Williams, 529 U.S. at 390. 

Absent an objectively reasonable basis for doing otherwise, “counsel must 

conduct sufficient investigation and engage in sufficient preparation to be able to 

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‘present [ ] and explain[ ] the significance of all the available [mitigating] 

evidence.’” Correll, 539 F.3d at 942 (alterations in original) (quoting Mayfield v. 

Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc) (quoting Williams, 529 U.S. 

at 399)); see also, e.g., Sears v. Upton, 561 U.S. 945, 953 (2010) (holding that trial 

counsel’s inadequate investigation, which led to a misleading portrayal of 

petitioner’s upbringing, was deficient and prejudicial); Wiggins, 539 U.S. at 534–

35 (counsel’s decision to limit mitigation investigation was unreasonable and 

prejudicial); Williams, 529 U.S. at 396 (concluding that counsel’s failure to uncover

and present extensive mitigation was not a tactical decision when counsel had not 

thoroughly investigated defendant’s background). Of course, individualized 

sentencing demands that the jury be able to consider mitigating evidence, and so 

counsel’s duties do not end with unearthing that evidence. The Court has thus also 

made clear that defense counsel has a constitutional duty to present to the jury the 

mitigation. See Williams, 529 U.S. at 396 (faulting counsel’s failure to introduce 

mitigating evidence as an abrogation of duty); Bean v. Calderon, 163 F.3d 1073, 

1079 (9th Cir. 1998). 

Further, as noted earlier, the Supreme Court has consistently relied upon 

guidelines from the ABA and other professional groups to inform the inquiry into 

reasonable professional conduct. See, e.g., Rompilla v. Beard, 545 U.S. 374, 387 & 

n.7 (2005). The 2003 ABA Guidelines outlined the key aspects of competent capital 

representation applicable to Kiles’s mitigation proceeding, which commenced in 

mid-2006. In fact, at the time of Kiles’s mitigation phase, Arizona Rule of Criminal 

Procedure 6.8 required counsel to be familiar with the ABA Guidelines to be 

eligible for appointment. Ariz. R. Crim. P. 6.8(b)(1)(iii) (2000). By the time of 

Kiles’s penalty phase, there was no question as to counsel’s duty to thoroughly 

investigate, present, and explain the significance of all relevant mitigation. 

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D. Lead counsel’s derogation of his duties and the resulting team 

dysfunction led to a deficient mitigation investigation and 

inadequate presentation. 

Kiles’s legal team did not operate as a team. Lead counsel Greg Clark 

effectively abdicated responsibility for Kiles’s case after the guilt-phase verdicts on 

July 20, 2000, leaving second chair Treasure VanDreumel as the sole attorney for 

Kiles’s aggravation and mitigation phases. 

“Lead counsel bears overall responsibility” for a capital case. 2003 ABA 

Guideline 10.4(B). Moreover, “the provision of high quality legal representation in 

capital cases requires a team approach that combines the different skills, experience, 

and perspectives of several disciplines.” 2003 ABA Guideline 10.4(B) cmt. Kiles’s 

capital representation met neither of these standards. Lead counsel’s failure to 

assemble and manage a defense team to conduct an investigation fell below 

prevailing professional norms and resulted in an unreasonable mitigation 

investigation. See, e.g., Correll, 539 F.3d at 942; Mayfield, 270 F.3d at 927; 

Williams, 529 U.S. at 399; Sears, 561 U.S. at 953. 

1. Lead counsel did not assist in the mitigation-phase 

investigation, leaving Kiles with one attorney in violation of 

prevailing professional norms. 

Because of the complex nature of capital cases, the 2003 ABA Guidelines 

called for at least two attorneys in capital cases; even the 1989 ABA Guidelines 

required two attorneys for a capital case. 2003 ABA Guideline 4.1(A)(1); 1989 

ABA Guideline 2.1. However, Kiles was effectively left with one attorney for much 

of the critical investigation portion of his case after the guilty verdict and for much 

of the mitigation presentation. 

Clark did little, if any, work for Kiles’s mitigation-phase investigation and 

trial. Clark’s contract granted a set sum for taking Kiles’s case and an additional set 

sum if the case went to a guilt-phase trial. See Claim 1, supra. Clark received no 

further funds for post-guilt-phase proceedings, which stretched on for nearly six 

years. Other than conducting the penalty-phase voir dire, Clark did little on Kiles’s 

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case after the guilty verdict. Clark’s lack of preparation at voir dire was evidenced 

by his ignorance of Kiles’s mitigation evidence. See Claim 4, supra. When 

VanDreumel requested time after time that Clark contact a single expert, he did not 

accomplish even that one task. 

Kiles moved to remove Clark for his failure to assist in the mitigation-phase 

preparation. (ROA 615.) However, the court permitted Clark to remain on the case, 

effectively leaving VanDreumel as Kiles’s sole lawyer throughout the penalty 

phase. VanDreumel wrote to the judge on September 10, 2003, requesting 

additional funds, because she had exclusively handled the investigation and 

preparation of the mitigation phase. Her request was granted. 

2. Counsel failed to request a mitigation specialist or to begin 

a mitigation investigation upon appointment. 

Counsel did not request a mitigation specialist or begin a mitigation 

investigation until after the guilty verdict. Given prevailing professional norms, and 

that a review of Kiles’s first state post-conviction file would have revealed the vast 

complexity of potential mitigation evidence, it was unreasonable for counsel to fail 

to request a mitigation specialist until after Kiles was found guilty. 

“[L]egal experts agree that preparation for the sentencing phase of a capital 

case should begin early and even inform preparation for a trial’s guilt phase.” Allen 

v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005). The 1989 ABA Guidelines, in 

effect at the time of Kiles’s guilt phase, required that counsel’s mitigation-phase 

investigation “begin immediately upon counsel’s entry into the case and should be 

pursued expeditiously.” 1989 ABA Guideline 11.4.1(A). Attorney Robert J. 

Roberson, who was appointed in March 1998 to represent Kiles at trial after Kiles 

obtained state post-conviction relief, asked the court to appoint a mitigation 

specialist and fact investigator in August 1998.119 (ROA 372 at 1.) Roberson 

 

119 Roberson argued in his motion that “[c]urrent law clearly provides that the 

mitigation phase of the sentencing portion of this case is extremely important. . . . 

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withdrew for unrelated conflict reasons, and when Clark was appointed, he did not 

argue the need for a mitigation specialist despite the pending motion.(See Tr. Aug. 

21, 1998 at 40–43.) After the guilt phase, VanDreumel acknowledged that counsel 

should have hired a mitigation specialist and begun an investigation upon 

appointment. 

Kiles was found guilty on July 20, 2000. (ROA 482 at 1–8.) It was not until 

October 4, 2000 that Kiles’s counsel moved for appointment of a mitigation 

specialist. (ROA 509 at 1.) Within days, the court appointed Jan Dowling, an 

experienced mitigation specialist. (ROA 510 at 1.) 

3. Counsel’s failure to be involved in the investigation and the 

subsequent resignation of the mitigation specialist resulted 

in a disjointed mitigation investigation. 

After the court appointed Jan Dowling as the mitigation specialist, 

VanDreumel failed to provide the resources Dowling requested and to supervise 

Dowling’s investigation. Because of counsel’s failure to be involved in the 

mitigation investigation, Dowling resigned, resulting in a disjointed mitigation 

investigation and an inexperienced mitigation specialist taking over Kiles’s case. 

a. Clark’s abdication and VanDreumel’s unreasonable 

mitigation decisions led to a team breakdown. 

Dowling began her investigation immediately after her appointment to 

Kiles’s case, meeting with Kiles within days and his mother within weeks. The 

team’s lack of communication and direction were apparent from the start, as 

Dowling reported to VanDreumel that Kiles was annoyed that no one had notified 

him Dowling had been appointed or that she was visiting him. Throughout late 

2000, Dowling worked independently on the mitigation investigation, without 

 

It is suggested that waiting until after sentencing to appoint such a specialist would 

be impractical since the magnitude of the job would take a considerable amount of 

time. The only real practical way to proceed in this matter is to appoint a mitigation 

specialist now and allow that person to get to work seeking out records, people, and 

events which would have a bearing on sentencing.” (ROA 372 at 1.) 

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direction from counsel, while counsel focused on Kiles’s motion for a new trial. In 

December 2000, the court denied defense counsel’s motion for a new trial and set 

the penalty-phase hearing for April 2001, at defense counsel’s request. (ROA 518; 

Tr. Dec. 29, 2000 at 29.) 

Counsel’s failure to maintain contact with Kiles critically hindered the 

mitigation investigation. “Adequate consultation between attorney and client is an 

essential element of competent representation.” United States v. Tucker, 716 F.2d 

576, 581 (9th Cir. 1983); (see also ROA 519). Even after the court denied the 

motion for a new trial, the attorneys neither participated in the investigation nor 

visited Kiles. During this time, Kiles had no contact with Clark and only one phone 

call with VanDreumel. (ROA 519 at 5.) On January 30, 2001, Kiles filed a pro se 

request for new counsel, citing counsel’s lack of investigation and lack of 

communication with him. (ROA 519); see also supra, Claim 1 (discussing 

attorneys’ lack of communication and conflicts with Kiles). The court scheduled 

another status hearing for April 2001, to hear Kiles’s motion.120

By April 2001, Dowling and VanDreumel’s working relationship had 

crumbled. As described in detail supra, Claim 1, VanDreumel sent Dowling’s 

confidential interview memos to Kiles, even though Dowling had warned her that 

doing so would impede the investigation. (ROA 533 Ex. A at 2.) Then, when 

Dowling requested VanDreumel’s input into the mitigation investigation, 

VanDreumel explained that she did not feel it was her role to participate in the 

mitigation investigation until after Dowling finished interviewing people and 

gathering information and wrote a final report. Then VanDreumel would decide 

who would be called to testify. VanDreumel rejected Dowling’s request for team 

meetings and aid of counsel. Instead, she expected Dowling to interview whoever 

 

120 At a scheduling hearing, Kiles pleaded with the court to set a time for him to 

speak with his counsel on the phone, as he had been trying since July to reach them. 

The court had to arrange an appointment for Kiles and Clark to speak by phone. 

(ROA 521 at 1.) 

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Dowling could find. She explained that she assumed Dowling knew the statutory 

and non-statutory mitigators in Arizona. VanDreumel described Dowling’s visits 

to meet with Kiles and his family as “useless” trips. 

Dowling wrote a letter to the court to identify her concerns about Kiles’s 

attorneys: They showed no interest in the case; they did not want to talk about 

potential themes and theories; they did not initiate meetings with witnesses; and 

they failed to address questions and issues arising during the investigation. Based 

on her extensive experience, she knew that prevailing professional norms required 

that counsel provide input on the mitigation investigation. (ROA 533 Ex. A at 2.) 

On June 4, 2001, Dowling resigned from the case because of ethical concerns 

regarding Clark’s and VanDreumel’s failure to adequately investigate Kiles’s 

mitigation and failure to communicate. She noted that counsel had stated incorrectly 

at the April status hearing that they had “nothing to do at this stage” but wait for 

her report, that counsel’s lack of participation fell well below the prevailing norms 

in her other capital cases, and that she had been abandoned by them. She affirmed 

that Kiles was cooperative and that his repeated complaints about his counsel were 

“justified and legitimate.” She noted that she had reviewed the files from the first 

state post-conviction proceedings, which counsel had not done. (ROA 533 Ex. A at 

3–4.) Kiles then filed a motion echoing Dowling’s statements that his counsel had 

failed to participate in the investigation. 

 On June 19, 2001, VanDreumel moved for the appointment of a new 

mitigation specialist and used the filing as an opportunity to lambast Dowling and 

her work. (ROA 533 Ex. C at 1–2.) VanDreumel rejected Dowling’s assertion that 

she should have reviewed the first state post-conviction files, as she had reviewed 

the sworn statements and pleadings provided by the Attorney General’s office. 

(ROA 533 Ex. C at 3.) VanDreumel reiterated her belief that there was nothing for 

counsel to discuss with the mitigation specialist. VanDreumel also reported to the 

court that Dowling had been fired by another capital client, while failing to note 

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that the client had fired the attorney on the case, too. (ROA 533 Ex. C at 5–6.) 

 Dowling responded to VanDreumel’s motion for appointment of a new 

mitigation specialist, explaining to the court counsel’s failure to direct the 

mitigation investigation. (ROA 533 Ex. D at 1.) Dowling further noted her belief 

that VanDreumel’s lies to the court about Dowling’s investigation warranted 

sanction. (ROA 533 Ex. D at 1.) Dowling stated that she had sent counsel memos 

starting in October 2000, but months later, it was apparent that counsel had not read 

them. Further, she delineated VanDreumel’s various lies, including VanDreumel’s 

claim that Dowling was unavailable and had provided no records and the claim that 

VanDreumel had reviewed records obtained from sources other than Dowling. 

(ROA 533 Ex. D at 2–3.) 

Of note, Dowling stated that VanDreumel had lied about possessing vital 

records from the first state post-conviction proceeding. In November 2000, 

VanDreumel had e-mailed Dowling to tell her she did not have mental-health 

records, school records, police or presentence reports on Kiles’s prior convictions; 

VanDreumel had only documents she and Clark had created for purposes of the 

guilt phase. (ROA 533 Ex. D at 3.) Dowling noted: 

It has been my experience that competent counsel in capital 

cases do meet and discuss testimony with witnesses long 

before the actual hearing. Competent counsel do not 

consider witness discussions to be “unnecessary.”. . . I can 

think of no circumstances under which it is appropriate for 

counsel in a capital case to not discuss the case with their 

mitigation specialist. 

(ROA 533 Ex. D at 3.) Dowling pointed out that VanDreumel had not identified 

any work she had done on the mitigation investigation beyond organizing the file 

in the eight months since the verdict. (ROA 533 Ex. D at 3.) 

The court responded to Dowling in a letter on which all parties, including the 

prosecutor, were copied. The court noted that Kiles and his first state postconviction counsel, Boyte, had “voiced similar concerns.” However, the court 

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wrote, “I strongly suspect that whatever sentence I end up imposing, there will be 

filed a petition for post conviction relief alleging ineffective assistance of trial 

counsel . . . [T]hat would be the appropriate time for me to take action, if any.” 

(ROA 533 Ex. E at 1.) After Dowling resigned, she sent VanDreumel her files and 

the records she had gathered. 

b. Counsel failed to direct the second mitigation 

specialist. 

 In moving for a new mitigation specialist, Kiles’s counsel specifically 

requested the appointment of Mary Durand, who had a great deal of capitalmitigation experience. (ROA 533 Ex. B at 1) VanDreumel, however, did not first 

ensure that Durand was available before the court appointed her on June 20, 2001. 

(ROA 530 at 1.) After the appointment, VanDreumel misrepresented to Durand that 

the investigation was practically done. As a result, Durand agreed to the 

appointment but enlisted Tyrone Mayberry, who was quite new to capital 

mitigation, to take charge of Kiles’s mitigation. (Tr. Dec. 3, 2001 at 17.) 

Kiles was thus effectively left with only one attorney, who at one point 

leading up to Kiles’s penalty phase had four other capital cases, and an 

inexperienced mitigation specialist. VanDreumel’s lack of involvement (and 

Clark’s complete abdication) was exacerbated by Mayberry’s lack of experience, 

compromising the mitigation investigation. 

After Dowling’s withdrawal, the penalty phase was rescheduled for July 

2002. (ROA 561 at 1.) Two weeks before the penalty phase was scheduled to begin, 

the U.S. Supreme Court struck down Arizona’s capital-sentencing scheme as 

unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002). Kiles’s proceedings were 

delayed further, and VanDreumel turned her attention to motions related to the 

sentencing scheme. (Tr. July 8, 2002 at 3–4; see also, e.g., ROA 579, ROA 580.) 

Lead counsel Clark abdicated responsibility for the mitigation investigation. 

Second chair VanDreumel then failed to direct that investigation, even though the 

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mitigation specialist was inexperienced. Due to counsel’s failure to direct the 

investigation, the mitigation specialist relied largely on the investigation that had 

been done over a decade prior. The result of the team’s dysfunction was an 

inadequate and unreasonable investigation during which, as discussed below, the 

defense team missed critical red flags that warranted attention. And the result of 

that insufficient investigation was an internally contradictory and confusing 

mitigation presentation that left the jury unwilling to consider leniency for the 

killing of Gunnel. 

E. Trial counsel were ineffective for failing to reasonably investigate, 

develop, and present important mitigation evidence. 

Competent counsel must conduct a thorough mitigation investigation, and 

the failure to do so constitutes deficient performance. The Sixth Amendment 

imposes on a capital-defense attorney “a duty to investigate, develop, and present 

mitigation evidence during penalty phase proceedings.” Summerlin v. Schriro, 427 

F.3d 623, 630 (9th Cir. 2005) (en banc). In Porter v. McCollum, the Supreme Court 

described this obligation as “unquestioned” as of 1988. 558 U.S. 30, 38–39 (2009). 

“[A] decision not to present . . . particular mitigating evidence is 

unreasonable unless counsel has explored the issue sufficiently to discover the facts 

that might be relevant to his making an informed decision.” Lambright v. Schriro, 

490 F.3d 1103, 1116 (9th Cir. 2007) (citing Wiggins, 539 U.S. 510, 522–23 (2003) 

and Stankewitz v. Woodford, 365 F.3d 706, 719 (9th Cir. 2004)). It “is imperative 

that all relevant mitigating information be unearthed for consideration at the capital 

sentencing phase.” Wharton v. Chappell, 765 F.3d 953, 970 (9th Cir. 2014) (quoting 

Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999)). “To that end, trial counsel 

must inquire into a defendant’s social background, family abuse, mental 

impairment, physical health history, and substance abuse history; obtain and 

examine mental and physical health records, school records, and criminal records; 

consult with appropriate medical experts; and pursue relevant leads.” Bemore v. 

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Chappell, 788 F.3d 1151, 1171 (9th Cir. 2015) (quoting Wharton, 765 F.3d at 970). 

“Where counsel is aware of potentially mitigating evidence, he or she must 

investigate that evidence, absent a reasonable strategic reason not to do so.” Id.

(quoting Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995)). 

Counsel must decide on a mitigation strategy after a reasonable investigation; 

investigation cannot follow an already-settled mitigation strategy. See Wiggins, 539 

U.S. at 521–22; Strickland, 466 U.S. at 691. The Ninth Circuit has made clear that 

“[a]n uninformed strategy is not a reasoned strategy. It is, in fact, no strategy at all.” 

Correll, 539 F.3d at 949. The mitigation that is presented must not just support a 

“superficially reasonable mitigation theory,” Sears v. Upton, 561 U.S. 945, 953–54 

(2010), nor may it be “haphazard.” Doe v. Ayers, 782 F.3d 425, 435 (9th Cir. 2015). 

Pursuant to Strickland, Williams, and Wiggins, in addition to the prevailing 

professional norms in Arizona at the time, counsel had an obligation to conduct a 

thorough investigation of Kiles’s background and mitigating evidence in 

preparation for sentencing. 

1. Counsel failed to properly investigate, develop, and present 

mitigation evidence pertaining to lay witnesses. 

It is imperative that counsel thoroughly investigate a defendant’s background 

in order to accurately present a complete history of the defendant’s life. See Bemore, 

788 F.3d at 1171. This investigation should include speaking to lay witnesses such 

as family members, past and present friends, and co-workers, among many others. 

See, e.g., Allen, 395 F.3d at 1001; Hamilton v. Ayers, 583 F.3d 1100, 1114 (9th Cir. 

2009). Both the 1989 and 2003 ABA Guidelines require a full investigation into a 

defendant’s background, including consultation with lay witnesses. 2003 ABA 

Guideline 10.11(F)(1), (2); 1989 Guideline 11.8.3(F)(1). It is unreasonable for 

counsel to fail to interview favorable, willing, and accessible witnesses. See 

Cannedy v. Adams, 706 F.3d 1148, 1161 (9th Cir. 2013) (counsel deficient for 

failing to interview potentially favorable witness at the guilt phase “when that 

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witness had been clearly identified, . . . was easily accessible[,] and [was] willing 

to provide information”). 

An investigation into a defendant’s background is critical to show that a 

defendant warrants leniency. Boyde v. California, 494 U.S. 370, 382 (1990); see 

also Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003) (deeming “mental 

health” and “social background” evidence “precisely the type of evidence that we 

have found critical for a jury to consider when deciding whether to impose a death 

sentence”). 

“[W]hen ‘tantalizing indications in the record’ suggest that certain mitigating 

evidence may be available, those leads must be pursued.” Lambright, 490 F.3d at 

1117 (quoting Stankewitz, 365 F.3d at 719–20). This is particularly true where 

defense counsel has possession of files that contain leads to mitigating evidence. 

Stankewitz v. Wong, 698 F.3d 1163, 1171 (9th Cir. 2012). Critically, it is not 

sufficient to start an investigation and not continue to pursue leads, or to rely on 

existing documents. Douglas, 316 F.3d at 1088 (finding ineffective assistance 

where counsel’s initial investigation put counsel on notice that defendant had a 

difficult childhood, yet there was no attempt to contact additional persons who 

might have had more detailed information about the defendant’s past). Kiles’s 

mitigation specialist did interview some family members and friends, but this was 

not sufficient for a reasonable investigation. See Hamilton, 583 F.3d at 1114 

(finding ineffective assistance where counsel conducted some interviews with 

family members and people who had information on the client’s childhood, but 

failed to further investigate). 

a. Counsel failed to conduct an adequate investigation 

into witnesses who could speak first-hand about 

Kiles’s background. 

The defense team failed to locate and investigate readily available mitigation 

witnesses, including family members, people who had written affidavits in 1994 for 

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the first post-conviction proceedings, and, in some cases, testified at the 1996 postconviction hearing. Counsel relied heavily on the mitigation investigation 

conducted in 1994 for Kiles’s first state post-conviction proceedings. Counsel 

should have ensured that these affidavits and interviews were updated and expanded 

through continued investigation. The prevailing professional norms for a mitigation 

investigation had changed since 1994, with the updated ABA Guidelines going into 

effect in 2003. See 2003 ABA Guidelines. Further, there were ample leads from the 

1994 investigation that could have been fruitful. The team failed to locate and 

follow up with witnesses whom Dowling had identified as needing follow up. 

VanDreumel had little idea what was going on with the lay-witnesses 

investigation until just prior to the start of the mitigation phase. While VanDreumel 

had seen, likely years earlier, the first state post-conviction exhibits with 

information from lay witnesses, she did not review them again until March 2006, 

on the eve of Kiles’s penalty-phase trial. She then seemed pleasantly surprised by 

them, remarking to Mayberry that they were great—previewing that the expert 

witness testimony she had coordinated had not taken them into account.121 As the 

mitigation proceeding drew near, VanDreumel revealed that she knew little about 

the lay witnesses who would testify. Even after jury selection was complete and the 

aggravation phase had begun, VanDreumel had no sense of who many of the lay 

witnesses Mayberry wanted to present were and had to ask Mayberry. 

As part of a reasonable mitigation investigation in which counsel followed 

prevailing mitigation investigation norms and followed up on “tantalizing leads,” 

counsel should have contacted or instructed the mitigation specialist to contact at 

least some of the following witnesses:122 

 

121 Though VanDreumel had told Kiles in 2001 that she would participate in followup interviews with witnesses that Dowling identified, her lack of knowledge of 

these witnesses on the eve of trial indicates that she did not. 

122 Some portion of the failure to interview witnesses may be attributable to an 

inability to locate them; however, many were still living in Yuma. Further, counsel 

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Family members: It appears that in Kiles’s family, Mayberry spoke only with 

Kiles’s mother Imojean, his sister Janell Hawkins, his niece, and his cousin. 

Mayberry spoke with the niece and cousin once each, shortly before the penalty 

phase began. 

However, Kiles’s first state post-conviction proceedings and Dowling’s 

preliminary investigation contained ample evidence that Kiles’s childhood and 

family history were essential to mitigation and included numerous investigatory 

leads. Relatives could have provided information on Kiles’s childhood and family 

history. Further, relatives could have provided more information on his mental 

health and brain damage, including the head trauma Kiles experienced when struck 

by a car at age five. Dowling had spoken with many of Kiles’s relatives in May 

2001, but no one followed up with them or with the other relatives listed in 

Dowling’s memos. These conversations revealed important red flags for further 

investigation, including intergenerational substance addiction, mental illness, and 

other trauma, as well as Kiles’s traumatic childhood and his resultant impairments 

at the time of the crime. Indeed, in May 2002, Mayberry created a “Family History” 

document that listed many members of Kiles’s extended family, noting their 

experiences with substance abuse, domestic violence, and mental illness. This 

incomplete document shows that Mayberry knew of many relatives whom he did 

not contact and the critical subjects about which they could speak. 

Mayberry could have spoken with many other members of Kiles’s large 

extended family, most of whom were still in close touch with Kiles’s mother and 

living in Arizona or over the border in California. Many had expressed willingness 

and eagerness to cooperate with Kiles’s mitigation investigation, as they had 

 

should have made use of the private investigator, Mary Meyer, who had been 

appointed at the guilt phase and remained technically on the case. (Tr. Oct. 8, 1999 

at 73–74.) Meyer did little, if any work during the penalty phase—the mitigation 

specialist did not interact with her, and it appears she was only asked to locate one 

witness. 

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cooperated with the first state post-conviction investigation and with Dowling. (See, 

e.g., ROA 225 Ex. 54 at 6; ROA 225 Ex. 38 at 3.) 

For example, Mayberry should have spoken to Kiles’s aunt Darnella Long. 

(ROA 225 Ex. 54; Tr. Feb. 20, 1996 at 110–30.) Her testimony at the first state 

post-conviction hearing and affidavit discussed the family history as slaves in 

Louisiana, intergenerational domestic violence, mental illness, child abuse, 

substance addiction, and racism in Yuma. (ROA 225 Ex. 54; Tr. Feb. 20, 1996 at 

110–30.) She also spoke about Imojean’s and Janell’s mental illnesses and alcohol 

addictions.123 (ROA 225 Ex. 54; Tr. Feb. 20, 1996 at 127–28.) Kiles’s brother-inlaw Larry Hawkins also signed an affidavit for the first state post-conviction 

proceeding with information on Kiles’s parents’ abusive relationship and the 

violence they inflicted on their children, Janell’s mental illness, Imojean’s alcohol 

addiction, and extended relatives’ substance addictions and mental illness. Hawkins 

attested to Kiles’s substance addiction and mental illness, throughout Kiles’s life 

and in the days surrounding the crime. (PFR2 Dkt. 20 Ex. 2 at 12–15.) VanDreumel 

also should have contacted Kiles’s uncle Alan Long, who wrote an affidavit for 

Kiles’s second post-conviction petition about the family history and racism in 

Yuma. (PFR2 Dkt. 28 Ex. 29 at 51–52.) 

Friends who wrote affidavits for the first state post-conviction proceedings: 

Kiles’s first state post-conviction attorneys gathered signed affidavits from 17 

people who knew Kiles throughout his life. (ROA 225 Exs. 37–64; PFR2 Dkt. 23 

Ex. 18 at 1–2.) Of these people, it appears that Mayberry tried to contact only a 

small number to expand on the information they provided. For example, Mayberry 

should have interviewed Kiles’s friends from his time in the Air Force, some of 

whom signed affidavits for Kiles’s first and second post-conviction proceedings, 

who could have provided insight into the progression of Kiles’s alcoholism and his 

 

123 Though Darnella Long died in 2003, she could have provided further information 

and investigative leads to Mayberry. 

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efforts to overcome his addiction and mental illness at a turning point in his life. 

(E.g., ROA 225 Ex. 57; ROA 225 Ex. 58; PFR2 Dkt. 28 Ex. 31; PFR2 Dkt. 28 Ex. 

32.) 

People who knew Kiles in the years, and particularly in the weeks, leading 

up to the crime could have furnished useful information about Kiles’s addictions 

and his worsening mental decompensation at the time of the crime, had the defense 

team contacted them for mitigation purposes. For example, Kale Johnson, who pled 

guilty to hindering prosecution in Kiles’s case (ROA 75 at 2), signed two affidavits 

for the first state post-conviction proceeding and was cooperative with Kiles’s prior 

counsel. (PFR2 Dkt. 20 Ex. 1.) His affidavit described Kiles as “on a binge” in the 

weeks leading to the crime and detailed Kiles’s extensive drug use. (PFR2 Dkt. 20 

Ex. 1 at 1–2.) He described Kiles as “very high on drugs and alcohol” and 

“staggering” around at the time of the crimes. (PFR2 Dkt. 20 Ex. 1 at 2.) 

Additionally, Willie Shepherd and Virgil Schultz both saw Kiles around the day of 

the crime and knew of his substance addiction and intoxication that day, and the 

resulting mental decompensation. (ROA 225 Ex. 46; Tr. Apr. 26, 2006 at 113; Tr. 

Apr. 27, 2006 at 62–63.) 

Family and friends who assisted in the 1989 mitigation investigation: At 

Kiles’s 1989 trial, people who knew Kiles as a child wrote letters about his character 

and his childhood. (2006 Tr. Ex. 152; Tr. Apr. 26, 2006 at 40–50.) It is likely that 

in the intervening years, some may have been willing to speak more openly and 

provide new leads. 

Other witnesses named in Kiles’s records: People listed in Kiles’s criminal, 

medical, school and other records were another obvious source of information. For 

example, it appears that counsel did not try to contact anyone referenced in Kiles’s 

records relating to his time on probation and his attempts to obtain vocational 

rehabilitation and substance abuse counseling, even in the months directly before 

the crime. These witnesses could have provided insight into Kiles’s struggle to 

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maintain sobriety and his worsening mental illness in the months before the crime. 

b. Because counsel failed to adequately investigate, 

counsel could not present lay witnesses who could 

adequately describe Kiles’s history. 

To put on a competent mitigation presentation, counsel must “use lay 

witnesses as much as possible to provide the factual foundation for the expert’s 

conclusions,” as “[f]amily members and friends can provide vivid first-hand 

accounts of the poverty and abuse that characterize the lives of many capital 

defendants. These witnesses can also humanize the client. . . .” 2003 ABA 

Guideline 10.11 cmt. Here, counsel were deficient because, despite the availability 

of numerous lay witnesses who could have provided compelling testimony, counsel 

presented next to no first-hand lay-witness testimony. 

VanDreumel had only two lay witnesses testify about Kiles’s life before the 

crime: Kathy Perrone, his sister’s high school friend, and Yolanda Biebrich, his 

high school girlfriend. Neither knew Kiles well, and together they relayed a 

misleading image that cut against the core of VanDreumel’s mitigation 

presentation.124 Neither had had much interaction with Kiles in many years. (Tr. 

Apr. 24, 2006 at 34–35, 51); see Libberton v. Ryan, 583 F.3d 1147, 1168–69 (9th 

Cir. 2009) (finding ineffective assistance where counsel called only lay witnesses 

who did not know defendant well). And yet, VanDreumel had them set the stage 

for the rest of the defense’s mitigation presentation. 

While Kathy Perrone testified about the whippings Kiles’s sister Janell had 

endured as a youth and her struggles with shoplifting, fighting, and drug addiction, 

 

124 Counsel presented two other lay witnesses: Harold Ulmer and James Prather 

Gill, two correction officers who had overseen Kiles while he was incarcerated. 

They spoke about his exemplary behavior while in custody, which made him seem 

like a mentally healthy and well-adjusted person. (See generally Tr. Apr. 26, 2006 

at 4–23.) While it was reasonable to present their testimony, counsel’s decision to 

present it so early on, without the context of experts who could explain that Kiles 

did well in structured settings, was unreasonable. This supported expert testimony 

by James Aiken, a prison management expert. (Tr. Apr. 27, 2006 at 5–54.) 

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she had little to offer about Kiles himself as a child. (Tr. Apr. 24, 2006 at 35, 38, 

40–43.) Her testimony was ultimately damaging to Kiles’s case, as she stated that 

she chose to live with the Kiles family in high school, undercutting much of the 

later testimony about the Kiles’s dysfunctional and violent home. (Tr. Apr. 24, 2006 

at 34.) On cross-examination, she testified that she never saw Kiles struck by his 

parents and that she never saw him use drugs. (Tr. Apr. 24, 2006 at 45–46.) She 

described him as generally a “happy” person who did well in school. (Tr. Apr. 24, 

2006 at 37.) 

Biebrich similarly minimized the dysfunction of the Kiles home and Kiles’s 

mother’s mental illness and addiction, stating only that Kiles’s mother had a 

drinking problem and got “loud.” (Tr. Apr. 24, 2006 at 52.) She painted a picture 

of Kiles as happy and highly functional, and she took pains to emphasize that he 

did not use drugs. (Tr. Apr. 24, 2006 at 53–54, 59.) She testified on crossexamination that Kiles had everything he could ever have wanted in terms of 

material goods and that she had never seen fights at the Kiles home or Kiles struck 

by either of his parents. (Tr. Apr. 24, 2006 at 61.) 

Then, instead of presenting vivid first-hand accounts of Kiles’s abusive 

childhood and resulting addiction and impairment through Kiles’s family and others 

who knew him, VanDreumel offered the testimony of the mitigation specialist. 

Mayberry offered second- and third-hand accounts that were misleading and 

confusing. Mayberry began by reading a set of character letters written for Kiles’s 

1990 sentencing, which conveyed that Kiles was a happy child who grew up in a 

nice family, but who had a personality change and turned to drinking and drugs. 

(Tr. Apr. 26, 2006 at 40–59.) He did so even though the story conveyed in those 

letters conflicted with many of the mitigation themes VanDreumel was attempting 

to present at the 2006 mitigation phase. 

Mayberry also provided second- and third-hand testimony on numerous 

topics that would have been effective as first-hand testimony. Instead of calling 

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Kiles’s friends and family members, VanDreumel had Mayberry—a member of the 

defense team—testify about people he had spoken with about Kiles’s childhood, 

family, and drug use leading up to and at the time of the crime, some of whom had 

previously written affidavits. (E.g., Tr. Apr. 26, 2006 at 85–108; Tr. Apr. 27, 2006 

at 59–62, 86–91, 94–109.) He testified about information from a nurse at the Yuma 

Jail who saw Kiles after he was first arrested, sharing second-hand that she said that 

at the time of his arrest, Kiles showed signs of psychological impairment. (Tr. Apr. 

27, 2006 at 82–86.) Mayberry even testified about information provided by Kiles’s 

mother and sister regarding such topics as Kiles’s traumatic childhood and the 

family history of mental illness. (Tr. Apr. 27, 2006 at 111–23.) But as the 

information did not come directly from the nurse or Kiles’s mother or sister, and 

the jury would have perceived that they were not willing to testify at Kiles’s 

mitigation phase, it lacked mitigating effect. See Powell v. Collins, 332 F.3d 376, 

400 (6th Cir. 2003) (finding ineffective assistance where counsel presented 

mitigation testimony about a client’s background through an expert discussing 

information contained in affidavits by friends and family members, instead of 

through first-hand accounts). 

As a result, the jury heard a misleading picture of Kiles’s childhood, 

addictions, and mental illness from Biebrich and Perrone, who knew Kiles for a 

limited time but who appeared to be the only two of Kiles’s family and friends 

willing to testify for him. “The inescapable message sent to the jury was that no one 

who really knew the young man [] found guilty of murder—not parents, not family 

members, not friends—would take the stand to explain why his life was still worth 

saving.” Cargle v. Mullin, 317 F.3d 1196, 1211 (10th Cir. 2003). But, in fact, this 

was not true, as many other individuals could have testified, as described above. 

Moreover, counsel did not adequately prepare these two witnesses in order 

to present Kiles’s social history “to the jury in a sufficiently detailed and 

sympathetic manner.” Douglas, 316 F.3d at 1087–89. Their testimony undermined 

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many of the mitigating factors that defense counsel urged that centered on Kiles’s 

traumatic childhood and his limitations in functioning. (Tr. May 22, 2006 at 19–

21.) The State used Perrone and Biebrich’s testimony to cross-examine defense’s 

mental-health experts on their findings that were based on Kiles and others 

reporting that he was abused as a child. (E.g., Tr. May 9, 2006 p.m. at 22–23.) 

Moreover, Biebrich’s and Perrone’s in-person testimony likely painted a more vivid 

picture than the second- and third-hand accounts Mayberry provided. The ABA 

Guidelines note that in-person testimony is more likely to affect a jury’s decisionmaking. See 2003 ABA Guideline 10.11 cmt. (explaining that “[c]ounsel should 

ordinarily use lay witnesses as much as possible to provide the factual foundation 

for the expert’s conclusions. Community members [with] relevant personal 

knowledge or experience often speak to the jury with particular credibility.”) Social 

science research indicates that defense experts are viewed with great skepticism and 

often regarded as “hired guns” unless their conclusions are supported by abundant, 

credible evidence from lay witnesses. See, e.g., Scott E. Sundby, The Jury as Critic: 

An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 

Va. L. Rev. 1109 (1997) (finding that two-thirds of the witnesses jurors thought 

“backfired” were defense experts). 

In sum, then, the defense’s first two witnesses—and the only two people who 

knew Kiles before the crime and who testified in person on his behalf—directly 

contradicted and undermined the credibility of much of the rest of the mitigation 

presentation, especially the expert mental-health testimony emphasizing Kiles’s 

addiction, mental illness, and abusive childhood. 

VanDreumel’s decision to present the lay-witness testimony through 

Perrone, Biebrich, and Mayberry was not a reasoned decision but the product of a 

grossly inadequate investigation. Counsel’s failure to be involved in the 

investigation and preparation of lay witnesses, or to even learn what they were to 

testify about until shortly before trial, was deficient, and that failure led to a 

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disjointed and misleading mitigation presentation. Counsel’s duty to investigate and 

present a case to spare a client’s life is not “discharged merely by . . . providing the 

sentencing court with a cursory or ‘abbreviated’ presentation of potentially 

mitigating factors.” Lambright, 490 F.3d at 1120 (quoting Stankewitz, 365 F.3d at 

716). Counsel’s decision to have Mayberry testify about information from lay 

witnesses indicates that VanDreumel felt the information was relevant mitigation. 

It underscores that the decision to not follow up on these “tantalizing” leads was 

not reasonable, and that the investigation was inadequate. VanDreumel also had a 

duty to present these witnesses to the jury—to investigate and then reach out to 

potential lay mitigation witnesses to explain to them the importance of mitigation 

in an effort to get them to testify. See Allen, 395 F.3d at 1002 (finding deficient 

performance where at habeas evidentiary hearing, “many family members, friends, 

and former associates [] affirmed that they would have testified as mitigation 

witnesses if [] counsel had asked them or if he had explained the importance of their 

testimony,” which “then-prevailing professional norms required”). The decision to 

have Mayberry testify second-hand was not the result of a reasoned, strategic 

decision, but instead was the result of an inadequate investigation by counsel. See 

Wiggins, 539 U.S. at 521–22; Correll, 539 F.3d at 949. 

The deficient performance with regard to the lay-witness presentation 

prejudiced Kiles. This testimony gave jurors the false impression that Kiles was a 

well-adjusted man who had a fine childhood, calling into doubt the credibility of 

the experts who followed. See Mayfield, 270 F.3d at 932. VanDreumel should have 

called such witnesses as Janell Hawkins, Kiles’s uncle Alan Long, and any number 

of Kiles’s friends and associates from the Air Force. These witnesses could have 

provided powerful testimony to the jury and helped to “humanize” Kiles. See White 

v. Ryan, 895 F.3d 641, 671 (9th Cir. 2018). They could have spoken first-hand to 

Kiles’s addiction at the time of the crime, his mental illness, the abuse he endured 

as a child, and his family’s multigenerational history of substance addiction and 

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mental illness, bolstering and adding color to the expert testimony that was to come. 

Instead, VanDreumel had Mayberry read old testimony and affidavits into 

the record, resulting in a cursory presentation of Kiles’s social history that was “not 

particularly useful or compelling.”125 Douglas, 316 F.3d at 1090 (finding 

ineffective assistance where counsel “introduced some of [the defendant’s] social 

history” but did so in a “cursory manner that was not compelling”); see also Bean, 

163 F.3d at 1081 (finding deficient performance where “numerous” mitigating 

factors “were reported to the jury only in the vaguest of terms” in finding deficient 

performance); see also Powell, 332 F.3d at 400 (finding prejudice where counsel 

presented background evidence through an expert, because “if counsel had actually 

conducted an investigation and produced pertinent witnesses, jurors would have 

heard first-hand accounts from those who knew Petitioner best. We believe that 

such personal testimony would have been of significant benefit during the penalty 

phase”). “[C]ounsel’s gross mishandling of the penalty-phase defense left [her] 

client’s fate to jurors who could only wonder why . . . [no] member of his family 

would step up to explain, in personal human terms, why his life should be spared 

notwithstanding the reprehensible conduct of which he had been found guilty.” 

Cargle, 317 F.3d at 1211. 

That the jury did not hear evidence of Kiles’s background and addiction in a 

reasonable manner “undermine[s] confidence in the outcome” of Kiles’s mitigation 

hearing. See Douglas, 316 F.3d at 1091 (quoting Strickland, 466 U.S. at 694). Had 

the jury heard any of this evidence, there is a reasonable probability that at least one 

juror would have voted for life for the killing of Gunnel. See Bemore v. Chappell, 

788 F.3d 1151, 1176 (9th Cir. 2015). 

 

125 Counsel should have been on notice to the ineffectiveness of this method of 

presentation, because at the aggravation phase only days before, the jury had asked 

a question about why so much testimony was being read into the record instead of 

in-person. (See ROA 870 at 1.) 

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2. Counsel failed to retain the necessary experts to properly 

investigate and explain several avenues of mitigation. 

Kiles’s counsel were ineffective in failing to hire the necessary and 

appropriate experts who could evaluate Kiles and explain his personal history and 

impairments to the jury. Hiring appropriate experts is a central duty of capital 

counsel. “It is not enough just to present ‘extensive mitigating evidence’ where 

particularly persuasive evidence—especially evidence in the form of expert 

testimony—was omitted.” Bemore, 788 F.3d at 1172; see also 2003 ABA Guideline 

10.11(F)(2), 10.11 cmt. 

Counsel should have consulted with experts on trauma, brain damage, and 

neurotoxin exposure. In failing to pursue obvious lines of investigation, 

VanDreumel’s actions fell below prevailing professional norms. Counsel need not 

“investigate every conceivable line of mitigating evidence no matter how unlikely 

the effort would be to assist the defendant at sentencing,” however, a “decision not 

to investigate [] ‘must be directly assessed for reasonableness in all the 

circumstances.’” Wiggins, 539 U.S. at 533 (quoting Strickland 466 U.S. at 691). 

Where “‘tantalizing indications in the record’ suggest that certain mitigating 

evidence may be available, those leads must be pursued.” Lambright, 490 F.3d at 

1117 (quoting Stankewitz, 365 F.3d at 719–20). Here, VanDreumel missed just such 

“tantalizing indications in the record” of necessary follow-up investigation, and the 

decision not to pursue these paths of mitigation was not based on adequate 

investigation or sound strategic judgment. 

 In failing, without sound reason, to consult with experts in these fields, 

counsel failed to properly investigate Kiles’s mitigation and failed to contextualize 

the mitigation evidence that was presented. Counsel should have consulted with the 

following experts: 

Trauma expert: VanDreumel should have consulted with a trauma expert. 

The mitigation investigation uncovered extensive evidence of Kiles’s childhood 

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trauma, as detailed above, and various experts and the mitigation specialist 

presented this to the jury in scattershot form. However, counsel failed to consult a 

trauma expert who could have properly investigated Kiles’s childhood trauma and 

put his crimes and substance addiction into context by explaining how chronic 

abuse of varied kinds during his formative years caused Kiles’s mental illness. 

Further, a trauma expert could have properly investigated evidence of sexual abuse, 

of which there were many indications. For example, Kiles suffered from 

nightmares, sleepwalking, and enuresis as a child—all red flags for potential sexual 

abuse. (1990 Trial Def. Ex. 4 at 7.) Kiles’s grandfather regularly babysat Kiles and 

plied him with alcohol when he was as young as four or five. (Tr. May 11, 2006 at 

38.) Moreover, Kiles’s childhood was marked by his family’s complete lack of 

sexual boundaries. His mother regularly threw wild family parties, where his 

mother and her sisters would take off their clothes. (Tr. Apr. 26, 2006 at 93.) 

VanDreumel knew as much, as prior mitigation specialist Jan Dowling discussed 

these parties in memos she gave VanDreumel. At these parties, Kiles’s aunt, 

Darnella Long, would regularly perform sexual dances in view of the children 

during which she would moan and simulate sex. Dowling’s memos also noted that 

Kiles’s father had a child with Darnella (Kiles’s mother’s sister) and that Kiles’s 

uncle was known for sexually propositioning family members and would frequently 

invite a young Kiles to watch pet rabbits have sex. The family history compiled by 

Mayberry, noted that Darnella, Kiles’s aunt, told her sister, Kiles’s mother, that she 

was going to sleep with Kiles, her nephew. In an affidavit from the first state postconviction proceeding, Kiles’s mother stated that a boyfriend of hers had accused 

her of sleeping with her son. (PFR2 Dkt. 23 Ex. 19 at 7.) Kiles began having sexual 

relations at a young age, another indicator of sexual abuse. 

Despite these “tantalizing indications,” VanDreumel failed to hire an expert 

who could have used her specialized skills to investigate and then present to the 

jury that Kiles was exposed at an early age to sexual violence, was subjected to the 

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complete obliteration of normal adult-child sexual boundaries, and, upon 

information and belief, was further sexually abused. See Stankewitz, 365 F.3d at 

719. The ABA Guidelines note the need to hire a mental-health expert to examine 

sexual abuse, as having suffered such trauma is “common among persons convicted 

of violent offenses on death row.” 2003 ABA Guideline 4.1 cmt.; see also 1989 

ABA Guideline 11.8.6(B)(5) (obligating counsel to consider presenting evidence 

of sexual abuse). The 2003 ABA Guidelines further recognize that it can be difficult 

to elicit such information. 2003 ABA Guideline 4.1 cmt. The Supreme Court has 

specifically pointed to sexual abuse as the type of “powerful” evidence that, where 

counsel fails to present it to the jury, the client is prejudiced. Wiggins, 539 U.S. at 

534–35. 

Because VanDreumel failed to retain someone with the appropriate expertise 

to interview Kiles and investigate his abuse and trauma more thoroughly, 

VanDreumel was unable to appropriately present the full extent of his trauma. 

Instead, witnesses sporadically alluded to the possibility of childhood sexual abuse, 

without context or meaning. Because VanDreumel had not adequately investigated, 

she actively undercut this mitigating evidence. When she asked psychiatrist Albert 

Globus, M.D., about Kiles’s experience living with his mother, Imojean, and her 

abusive boyfriend shortly before the crime, VanDreumel noted that Imojean had 

written in an affidavit that the boyfriend had accused Imojean of sleeping with 

Kiles. (Tr. Apr. 24, 2006 at 111.) VanDreumel then said she wanted to “clean up” 

that there was no sexual element to Kiles’s relationship with his mother—despite 

the fact that such sexual abuse, if present, would be compelling mitigation. (Tr. Apr. 

25, 2006 at 39); see Wharton v. Chappell, 765 F.3d 953, 978 (9th Cir. 2014) (finding 

failure to present sexual abuse by parent prejudicial because it was particularly 

mitigating in part due to its “personal” nature). Dr. Globus answered that, while 

there was “no specific indication being of a suspicious nature, I’m not so sure. . . . 

I didn’t find any specific evidence and she certainly didn’t admit it.” (Tr. Apr. 25, 

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2006 at 39.) Due to VanDreumel’s failure to investigate and consult with 

appropriate experts, she could not present effective expert testimony regarding 

evidence of family sexual abuse. 

An expert is important to contextualize and explain the effects of trauma; 

such an expert could have shed light on just how out of control and unsafe life was 

for Kiles growing up. See, e.g., Caro v. Woodford, 280 F.3d 1247, 1255 (9th Cir. 

2002) (“‘[T]he introduction of expert testimony would also have been important’ 

to explain the effects that ‘serious physical and psychological abuse and neglect as 

a child’ had on the defendant” (quoting Ainsworth v. Woodford, 268 F.3d 868, 876 

(9th Cir. 2001)). As a child, Kiles’s mentally ill parents constantly inflicted violence 

on each other and on their children. Their children were caught in the middle. Kiles 

often had to stop his parents from hurting each other—which resulted in physical 

and psychological abuse directed at him. Kiles’s mother regularly drank to the point 

where, even as a child, Kiles had to pick her up and carry her home. (Tr. Apr. 27, 

2006 at 59.) He would miss school after this happened because he was so 

embarrassed. An expert would have been able to illuminate the degree to which 

Kiles’s family dynamic shaped Kiles throughout his life, and VanDreumel’s 

decision not to consult one was unreasonable. 

Neuroimaging specialist: Trial counsel failed to consult with an expert who 

could have conducted and evaluated appropriate brain imaging to investigate signs 

that Kiles had organic brain damage. (ROA 1189 at 48–52, 60–61.) Second state 

post-conviction counsel hired neuroimaging specialist Joseph Wu, M.D., to 

perform an MRI of Kiles’s brain, which revealed abnormalities consistent with 

brain damage. (ROA 1189 at 50; PFR2 Dkt. 28 Ex. 25 at 4–20.) These images 

revealed observable white-matter hyperintensities in the frontal lobe of Kiles’s 

brain and a reduced-size corpus callosum. Both are consistent with traumatic brain 

injury. This type of injury as a child is related to attention-deficit (i.e., impulsivity) 

disorders. Dr. Wu concluded that Kiles had brain damage. (ROA 1189 at 50.) 

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The use of brain scans, and in particular MRIs, to investigate (and later 

present) brain damage for mitigation purposes was widespread before the 2006 

penalty phase. Brain injury is considered “classic mitigation evidence,” and 

“Arizona courts place significant weight on brain injuries as mitigating evidence.” 

Correll, 539 F.3d at 950, & n.3. The 2003 ABA Guidelines emphasize the need to 

investigate brain impairment and that brain scans may be necessary. 2003 ABA 

Guideline 4.1 cmt. Further, the Ninth Circuit has made clear that, “where counsel 

is on notice that his client may be mentally impaired, counsel’s failure to investigate 

his client’s mental condition as a mitigating factor in a penalty phase hearing, 

without a supporting strategic reason, constitutes deficient performance.” 

Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995); see Smith v. Mullin, 

379 F.3d 919, 943 (10th Cir. 2004) (recognizing jury knew of defendant’s 

impulsivity and lack of emotional control, but defendant was prejudiced by 

counsel’s failure to present an explanation of how organic brain damage “caused 

this ‘kind hearted’ person to commit such a shocking crime”). 

VanDreumel knew that Kiles had risk factors for and signs of brain damage. 

For example, medical and legal records available to VanDreumel showed that Kiles 

was hit by a car around age five, after which he suffered from regular nosebleeds 

and severe headaches.126 Further, Dr. Globus testified at the first state postconviction hearing that Kiles was addicted to substances as a consequence of 

“organic disorders in the brain.” (Tr. Feb. 21, 1996 at 177.) Dr. Globus described 

Kiles’s impulsivity and specifically noted that impulsivity is often concomitant to 

brain damage. (Tr. Feb. 21, 1996 at 198.) Moreover, when VanDreumel first 

requested funds to hire a mitigation specialist in 2000, she wrote: “When the matter 

was overturned on PCR, the PCR had several affidavits indicating an impulsivity 

disorder which is likely related to brain damage, so we are pursuing that.” (ROA 

 

126 Indeed, regular nosebleeds in the wake of a head trauma can indicate a fractured 

skull. 

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509 Ex. A at 1.) 

VanDreumel knew that a brain scan was necessary to determine the extent of 

Kiles’s brain damage as early as July 2001. Still, counsel failed to hire an expert 

who could produce and evaluate brain scans to investigate Kiles’s brain damage. 

As a result, VanDreumel failed to procure and present neuroimaging evidence that 

Kiles did indeed have brain damage. This failure was particularly unreasonable 

given that a central theme at the mitigation-phase trial was Kiles’s impulsivity, a 

form of brain dysfunction often attributable to brain damage. (See Tr. May 22, 2006 

at 19 (jury instructions listing “possible neurological damage” as a mitigating factor 

for the jury to consider)); Lambright, 490 F.3d at 1117 (counsel has a duty to pursue 

“tantalizing indications in the record”). Had VanDreumel retained an expert to 

investigate Kiles’s brain damage by conducting the proper brain scans, there would 

have been no question about the neurological damage. (ROA 1189 at 50.) 

A qualified expert would have obtained the necessary images and would have 

been able to show the jury Kiles’s brain damage. Instead, the jury heard 

disorganized and easily dismissed testimony about Kiles’s “possible” brain 

damage. (E.g., Tr. Apr. 24, 2006 at 86; Tr. May 8, 2006 at 20; Tr. May 10, 2006 at 

106.) For example, the State elicited from Dr. Globus that there was no evidence of 

organic brain damage—based on the lack of testing.127 (Tr. May 8, 2006 at 37.) 

And, critically, irrefutable evidence of brain damage would have undercut a 

key aspect of the State’s rebuttal evidence. Evidence of brain damage would have 

harmed the State’s experts’ testimony that Kiles had anti-social personality disorder 

(“ASPD”), as such a diagnosis requires ruling out that the underlying behavior is 

 

127 On redirect, Dr. Globus testified incorrectly (without being qualified to do so) 

that a scan would not have helped determine brain damage, based on the type of 

damage he believed Kiles had and because Kiles had been off drugs and in prison 

for so long. (Tr. May 8, 2006 at 26.) Dr. Globus though, was not a brain-damage 

expert; he testified that he did not find Kiles’s severe lifelong headaches to be 

significant, showing his lack of expertise in brain damage. VanDreumel seemed 

surprised when he answered this way. (Tr. Apr. 24, 2006 at 94.)

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not a consequence of head trauma. See Mann v. Ryan, 828 F.3d 1143, 1172 (9th 

Cir. 2016) (en banc) (Thomas, C.J., dissenting); Am. Psychiatric Ass’n, Diagnostic 

and Statistical Manual of Mental Disorders 630 (4th ed. Text Revision 2000) 

(hereinafter “DSM-IV-TR”). 

The failure to hire a brain-imaging specialist had further consequences that 

reverberated throughout Kiles’s trial. For example, because of the lack of brain 

imaging, VanDreumel ultimately decided not to have the substance-abuse expert 

they had hired testify. This was because VanDreumel was concerned that the expert 

would be cross-examined on the lack of brain-imaging evidence. But, as Kiles’s 

addictions were central in so many ways to his story—both as the result of his 

trauma and as direct cause of the crime—the absence of testimony by the substanceabuse expert left a gaping hole in the defense’s presentation. 

“An uninformed strategy is not a reasoned strategy. . . . [I]n the absence of 

diligent investigation, counsel cannot make a reasoned tactical decision regarding 

whether or not to present mitigating evidence.” Correll, 539 F.3d at 949. Here, 

counsel’s failure to get brain imaging was not strategic. VanDreumel did not have 

the expertise to make this determination, and it was unreasonable insofar as it was 

based on a lack of a proper investigation into Kiles’s social history.128 Further, 

counsel must engage experts to evaluate specific mental conditions: “[c]ounsel’s 

own observations of the client’s mental status . . . can hardly be expected to be 

sufficient to detect the array of conditions . . . that could be of critical importance.” 

2003 ABA Guideline 4.1 cmt.; see also Summerlin, 427 F.3d at 630 (reasoning that 

counsel must examine client’s physical-health history for evidence of potential 

organic brain damage.) 

 

128 To the extent that VanDreumel’s decision was based on the report of 

neuropsychologist Scott Sindelar, Ph.D., the decision cannot be considered 

strategic or defensible. As discussed below, Dr. Sindelar was inadequately prepared 

for his examination of Kiles, and his report was accordingly unreliable and 

demonstrably inaccurate. 

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Counsel’s decision to abandon the investigation at a critical juncture, with 

red flags of brain damage abounding, was deficient performance, and the lack of 

brain-damage evidence at Kiles’s mitigation phase prejudiced him. 

Expert in environmental toxins: Kiles was born and raised in Yuma, Arizona, 

and lived there at the time of the crimes. Kiles’s family had lived in Yuma for 

generations. Yuma is famously an agricultural community, which carried a serious 

risk of environmental-toxin exposure.129 Yuma is also home to a Superfund site: the 

Yuma Marine Corps Air Station, where Kiles’s mother worked.130

In 2002, the Ninth Circuit found ineffective assistance where counsel 

consulted four experts, but failed to hire a neurologist or toxicologist to investigate 

exposure to pesticides and the effects on the client’s brain. Caro v. Woodford, 280 

F.3d at 1255. Still, Kiles’s counsel did not consult with an expert about this matter. 

Kiles’s counsel was further on notice because Dowling included in a 2000 memo 

 

129 By 2000, there was widespread knowledge about the long-term dangers—

including brain damage—of agricultural toxins, including pesticides used when 

Kiles was a child in the 1960s and 1970s. See, e.g., Natural Resources Defense 

Council, Trouble on the Farm: Growing Up with Pesticides in an Agricultural 

Community (Oct. 1998) (discussing Yuma among agricultural communities where 

children are exposed to toxins); see also Matthew L. Wald, Citing Children, EPA 

is Limiting Use of a Pesticide, N.Y. Times, Aug. 2, 1999 (describing the banning 

of widely used agricultural pesticides); EPA, Review and Evaluation Report on 

Pesticide Pollution of the Lower Colorado River (May 1973) https:// 

nepis.epa.gov/Exe/ZyPDF.cgi/91022Q8X.PDF?Dockey=91022Q8X.PDF at 2, 4 

(discussing extensive pesticide use in Yuma and how 1960s studies showed that the 

Colorado River in Yuma was so polluted by agricultural pesticides that it 

constituted a “serious hazard” to fish and users of its water, which was used for 

domestic consumption); Patricia Sánchez Lizardi et al., The Effects of 

Organophosphate Pesticide Exposure on Hispanic Children's Cognitive and 

Behavioral Functioning, 33 Journal of Pediatric Psychology, Jan. 1 2008, at 91–

101, https://doi.org/10.1093/jpepsy/jsm047 (describing articles from the 1980s 

through early 2000s on the harmful effects of pesticides). 

130 Superfund sites are designated by the Environmental Protection Agency as 

containing chemical contaminants that pose an “unacceptable risk to human health 

or the environment.” The Yuma site contains groundwater contaminated by four 

different contaminants of concern. It was placed on the National Priorities List in 

1990. Environmental Protection Agency, Yuma Marine Corps Air Station: 

Background, https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0900885. 

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to counsel that Kiles picked fruit for local farmers. As discussed previously, counsel 

knew that Kiles may have had brain damage and that he had other symptoms 

associated with pesticide exposure, such as headaches and asthma. (ROA 1189 at 

50–51.) Even so, counsel failed to retain the necessary and appropriate expert to 

evaluate Kiles to assess his exposure to and the potential effects of environmental 

toxins. It was unreasonable to forgo this line of inquiry without good cause. It is 

deficient performance where, as here, counsel “ignored pertinent avenues for 

investigation of which [she] should have been aware.” Porter, 558 U.S. at 40. 

Counsel were ineffective in failing to consult with experts in these fields. 

“[I]t is not enough that some of the defense witnesses informed the jury of the facts 

that might underlie a mental health mitigation defense; expert testimony to explain 

the ramifications of those experiences on [petitioner’s] behavior . . . is necessary.” 

Bemore, 788 F.3d at 1172 (internal quotation marks omitted). Absent a sound 

strategic reason for not doing so, counsel were required to conduct sufficient 

investigation and preparation to be able to present and explain the significance of 

all the available mitigating evidence. Counsel could not fulfil this duty without 

consulting the above experts, and as a result, the evidence that the jury saw was 

incomplete and misleading. Lambright, 490 F.3d at 1120. Because counsel’s 

decisions to truncate the investigation meant that counsel failed to present a variety 

of critical and compelling mitigation, counsel’s error “undermine[s] confidence in 

the outcome” of Kiles’s mitigation-phase hearing. See Douglas, 316 F.3d at 1091. 

3. Counsel performed deficiently in failing to provide the 

experts she did retain with complete and accurate 

information. 

Closely related to the duty to thoroughly investigate and present mitigation 

is the duty to provide complete and accurate information about the defendant’s 

background to evaluating mental-health professionals. Counsel have “an 

affirmative duty to provide mental-health experts with information needed to 

develop an accurate profile of the defendant’s mental health.” Caro v. Woodford, 

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280 F.3d at 1254. The “duty to provide the appropriate experts with pertinent 

information about the defendant is key to developing an effective penalty phase 

presentation.” Id. at 1255 (citing Bean, 163 F.3d at 1079–80); see also, e.g., 

Lambright, 490 F.3d at 1117 (counsel has an affirmative duty to provide mentalhealth experts with social-history information needed to develop an accurate 

mental-health profile of the defendant); Clabourne v. Lewis, 64 F.3d 1373, 1384 

(9th Cir. 1995) (counsel failed to provide mental-health experts with records 

sufficient to develop an accurate psychological profile of defendant). Counsel must 

provide their experts with sufficient information to ensure that the experts can 

“‘present[] and explain[] the significance of all available [mitigating] evidence.’” 

Correll, 539 F.3d at 942 (alternations in original) (quoting Mayfield, 270 F.3d at 

927). 

In order to provide that foundational information, counsel must first conduct 

a reasonable investigation into mitigation. See Caro v. Woodford, 280 F.3d at 1255 

(finding deficient performance when counsel “neither investigated fully this history 

nor informed the experts . . . of those facts that were known to him”). Only once 

counsel has assembled an adequate social history and provided that information to 

experts will they be able to conduct and complete a reliable mental-health 

evaluation and to recommend additional experts as needed. See, e.g., Russell 

Stetler, Mental Health Evidence and the Capital Defense Function: Prevailing 

Norms, 82 UMKC L. Rev. 407 (2014); George W. Woods et al., Neurobehavioral 

Assessment in Forensic Practice, 35 Int’l J. of L. & Psychiatry 432 (2012). 

Though VanDreumel hired a number of experts, she unreasonably failed to 

prepare these experts with an adequate social history. As discussed above, 

VanDreumel did not direct the mitigation investigation insofar as it involved lay 

witnesses, instead leaving it in the hands of an inexperienced mitigation specialist. 

The resulting investigation was incomplete and fell below prevailing professional 

norms. VanDreumel’s unreasonable investigation into Kiles’s life led to an 

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incomplete social history. As a result, the social history provided to experts was 

inadequate. Further, VanDreumel did not provide to the experts many records 

which were in her possession and which were necessary to allow the experts to 

accurately assess Kiles’s mental health. This failure to adequately inform experts 

was compounded by counsel’s failure to consult with experts on trauma, brain 

damage, and neurotoxin exposure. See, e.g., Bean, 163 F.3d at 1079-80; Lambright, 

490 F.3d at 1117; Caro v. Woodford, 280 F.3d at 1255. 

In April 2002, with trial scheduled for July 2002, counsel asked the court to 

appoint three mental-health experts: Scott Sindelar, Ph.D., a neuropsychologist, 

Thomas Gaughan, M.D., a psychiatrist, and Ashley Hart, Ph.D., a psychologist.131

(Tr. Apr. 8, 2002 at 10, 14.) Dr. Hart was an expert for the State at Kiles’s trial in 

1989 and 1990, but he then signed an affidavit for the defense in Kiles’s first state 

post-conviction proceedings.132 

Following their appointment, Ty Mayberry, the mitigation specialist, 

contacted VanDreumel to say he wanted to touch base and get on the same page, 

because Kiles had told him that experts had been hired. Mary Durand, who oversaw 

the mitigation specialists in Maricopa County, e-mailed Mayberry around the same 

 

131 While the transcript reflects that counsel requested and the court appointed all 

three experts, the filed motion and the order only call for the appointment of Dr. 

Gaughan and Dr. Sindelar. (See ROA 572 at 1; Tr. Apr. 4, 2002 at 10, 14.) This was 

likely because Clark filed the motion and proposed order, and he was not involved 

in the decision-making or the case beyond the simple tasks delegated to him. Dr. 

Hart was appointed a month later, when Kiles himself asked the judge about the 

discrepancy. (Tr. May 6, 2002 at 36.) 

132 Dr. Hart evaluated Kiles and testified at the first sentencing hearing that Kiles 

suffered from a personality disorder and would not have committed the crimes had 

a police officer been at his shoulder, rebutting defense counsel’s theory that Kiles 

was impaired at the time under a statutory mitigator, A.R.S. § 13-703(G)(1). (Tr. 

Feb. 7, 1990 at 99, 138, 142.) In 1996, he signed an affidavit stating that after 

reviewing the extensive social history created by post-conviction counsel, he 

concluded that Kiles’s use of intoxicants was an attempt to self-medicate his 

longstanding mental illness. (Tr. May 9, 2006 at 60, 65; ROA 304 Ex. A at 3.) There 

is nothing to suggest that Dr. Hart conducted an updated evaluation of Kiles. 

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time to tell him that she ran into Clark, who had told her they hired Dr. Sindelar; 

Durand wished that counsel had let them know in advance, likely so they could 

have had input into the decision. As Mayberry was not consulted in connection with 

the hiring of experts, the selection of experts was entirely divorced from the little 

lay-witness investigation that had occurred. 

At the end of May 2002, counsel sent each expert a stack of papers that 

constituted counsel’s mitigation “binder.” VanDreumel included a cover letter that 

detailed the facts of the crime, rather than any background on Kiles’s social history. 

The letter included, on its final page, one paragraph on Kiles’s social history, which 

focused on the possibility that Kiles suffered from a character trait of impulsivity 

and lack of anger control and coping mechanisms. The paragraph framed Kiles’s 

character as the result of the fact that he was struck by a car as a young child, grew 

up in a household with domestic violence, and had previously been sent to prison 

for beating a woman after she slapped him. 

The materials provided lacked many of the documents considered classic 

examples of social history to be provided to capital sentencing experts.133 See, e.g.,

Correll, 539 F.3d at 943; see also Caro v. Calderon, 165 F.3d at 1226–27. 

VanDreumel provided the experts with some records, including the following: 

parole records with psychological evaluations and information on Kiles’s attempts 

 

133 In July 2002, Dr. Gaughan requested additional documents—the documents that 

VanDreumel should have initially provided to him and all experts. These included 

the following: witness statements from the first trial and affidavits gathered for the 

first state post-conviction proceedings; Kiles’s missing medical, birth and school 

records, military records of discipline, military psychological or psychiatric 

evaluations referenced by date in other evaluations, legible copies of Kiles’s 

Arizona Department of Corrections (hereinafter “ADOC”) records of psychological 

evaluation and vocational rehabilitation services, ADOC testing from 1986 

including IQ testing, interviews with Janell Kiles regarding Kiles or their childhood, 

and divorce records of Kiles’s parents. Dr. Gaughan’s request reveals the extent to 

which the information that counsel initially provided was below prevailing 

professional norms. While counsel sent Dr. Gaughan the materials he requested, it 

is unclear if Dr. Hart and Dr. Sindelar ever received them. 

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to obtain addiction counseling and vocational rehabilitation services after prison; 

Kiles’s father’s naval records and other medical records; Kiles’s incarceration and 

medical records from ADOC through 1990; medical records from Kiles’s 

childhood; only some of his mother’s mental health and medical records; and his 

sister’s criminal history and a summary of presentence reports in her cases. 

VanDreumel provided a mix of expert testimony and reports on Kiles’s mental 

health from the first trial, as well as a mental-health expert’s affidavit from the first 

state post-conviction proceedings.134 

Counsel had in their possession, but failed to provide to these experts 

additional critical records including, for example Kiles’s incarceration and medical 

records beyond 1990; more-complete documentation of his parents’ medical and 

mental-health history; Kiles’s school records and Air Force records; and legal 

records from when Kiles was hit by a car as a child.135 (E.g., ROA 225 Exs. 3, 5, 

16, 19, 22.) 

In addition to missing critically important school, military, and updated 

 

134 Moreover, VanDreumel relayed the documents she did provide in an 

unreasonable manner which fell below prevailing professional norms. Mayberry, 

new to capital mitigation, sent the documents in a large pile, not in a binder, to save 

money. Experts received a 950-page pile without any context or indication as to 

what the documents were and which were important. On top were graphic 

photographs of Valerie Gunnel’s head injuries, photographs of the blood-spattered 

apartment, and a photograph of the nine-month-old victim after her body was found 

in a river. While these photographs were removed for some of the experts, at least 

some received them. Counsel did not send photographs of Kiles as a child and in 

the military that Dowling had tracked down. Following the photographs, counsel 

included police reports on the crime, and Kiles’s and the medical examiner’s 

graphic 1989 testimony. It was unreasonable for counsel to place these on top of a 

disorganized stack of papers, giving the experts a negative perspective on Kiles 

from the beginning. Potentially helpful documents, such as the timeline that 

Mayberry compiled, were hidden in the middle of this stack. 

135 Other useful documents that counsel should have had from the first postconviction proceedings include Kiles’s birth certificate and birth-related records, 

his parents’ marriage license and divorce filings, his father’s death certificate, and 

his sister’s medical and pregnancy records. (ROA 225 Exs. 1, 2, 14, 17, 21, 70.) 

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ADOC records, VanDreumel failed to provide any of the affidavits painstakingly 

collected by Kiles’s first state post-conviction counsel. VanDreumel also failed to 

include testimony from the 1996 state post-conviction hearing, which revealed 

important details to contextualize Kiles’s life. This mitigation-focused information 

from the first state post-conviction proceedings would have provided important 

context on, for example, the violent household in which Kiles was raised, childhood 

trauma, mental illness, substance addiction, potential brain damage, his mother’s 

alcohol and prescription drug use while pregnant with him, and an intergenerational 

history of mental illness and substance addiction. These affidavits included ones by 

Kiles’s mother and sister. (ROA 225 Ex. 37; PFR2 Dkt. 22 Ex. 3.) VanDreumel 

also did not include testimony from the 1990 trial that spoke about Kiles’s 

childhood and substance abuse, or any letters written on his behalf as character 

references for that trial. While counsel could not rely solely on this information as 

the basis for the mitigation investigation, it was important to provide this alreadycollected information to experts. 

Counsel’s failure to provide experts with a full social history, including the 

already-obtained affidavits and records, was particularly egregious given that Kiles 

was previously granted relief for ineffective assistance of counsel. In particular, 

Kiles’s first state post-conviction counsel argued that Kiles’s original trial counsel 

“failed to gather the records and background information necessary for a thorough 

and complete mental health evaluation of Alvie Kiles.” (ROA 225 at 69.) First state 

post-conviction counsel argued that these experts were not adequately informed of 

Kiles’s social history in rendering their opinions. (ROA 225 at 68–73.) 

The materials that VanDreumel failed to send were important to making 

mental health diagnoses. Kiles’s attorney for his first trial failed to provide many of 

these same materials to experts. Kiles’s first post-conviction counsel later provided 

these materials to one of those experts, psychiatrist Alexander Don. He then wrote 

in an affidavit for the first state post-conviction proceedings that after reviewing the 

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new material, he was able to more correctly diagnose Kiles with mental illnesses 

than he had been at trial, when he was not provided with all the relevant materials, 

underscoring the importance of these materials. (ROA 225 Ex. 78 at 3.) He 

specifically listed materials that were not provided to him initially which he later 

was able to review; these almost identically match the list of materials counsel 

failed to provide to experts at the second trial.136 (ROA 225 Ex. 78 at 2–3.) 

Dr. Sindelar was hired to conduct a neuropsychological evaluation of Kiles 

to determine if he had issues such as frontal-lobe brain injury, perhaps as a result of 

being hit by a car as a child, which caused him to act impulsively. VanDreumel had 

determined that Kiles’s impulsivity would be a central mitigation theme, even 

before having contacted any experts. However, due to the failure to provide Dr. 

Sindelar with adequate background information, it appears that he did not know it 

was a death-penalty case. The resulting report was unusable and directly 

contradicted Kiles’s known history. As a result, VanDreumel was not able to 

provide other experts with a valid, up-to-date neuropsychological assessment of 

Kiles, nor were the experts able to effectively counter the State’s neuropsychologist 

at trial. This undermined the entire mitigation investigation and presentation. 

Beginning in 2004, once it was clear that Kiles would receive a jury 

sentencing, counsel retained additional mental-health experts.137 In September 

2005, with trial scheduled for October 2005, counsel contacted Dr. Albert Globus, 

a psychiatrist who had testified at the 1996 state post-conviction hearing. Dr. 

Globus agreed to testify, but said he needed to meet with Kiles again. It appears he 

 

136 Inexplicably, counsel did not provide this affidavit by Alexander Don, M.D., to 

the second penalty-phase experts; instead, she gave an earlier one he had written 

before he had an opportunity to review the new information. (ROA 225 Ex. 62.) 

137 The penalty-phase trial was delayed for a number of years following Ring; 

however, it does not appear that any experts hired in 2002 conducted further 

evaluations of Kiles, nor did counsel send them new information beyond updated 

ADOC records. 

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never did. (Tr. Apr. 25, 2006 at 93.) In July 2004, the court appointed Lesley Hoyt 

Croft, Ph.D., as a substance-abuse expert. (ROA 630 at 1.) In 2005, counsel began 

to consult with Mark Cunningham, Ph.D., a forensic psychologist; the court 

appointed him in September 2005. (ROA 681 at 1.) 

While counsel appears to have provided at least some experts with essential 

social-history records, counsel failed to provide them with “information needed to 

develop an accurate profile of defendant’s mental health.” Caro v. Woodford, 280 

F.3d at 1254. Counsel gave Dr. Cunningham the social history that had been 

developed, including Dowling’s memos, the affidavits from the first state postconviction proceedings, and the records that she had, but counsel gave Dr. Croft the 

same minimal information they had given to Drs. Gaughan, Hart, and Sindelar in 

2002, with the addition of the new expert reports. Ultimately, because they failed 

to conduct an adequate investigation, counsel failed to provide the mental-health 

experts with sufficient underlying information. Some experts had largely outdated 

information, while at least two had not evaluated Kiles in over a decade. 

VanDreumel hired Dr. Croft because she recognized the need for a 

substance-abuse expert, given the importance of Kiles’s addiction as a mitigating 

factor and the effects of substance abuse on the brain. Dr. Croft met with Kiles and 

drafted multiple versions of her report. However, VanDreumel voiced concern with 

Dr. Croft’s description of the brain damage sustained by heavy drug users such as 

Kiles. Ultimately, VanDreumel appears to not have called her because she was 

concerned that Dr. Croft could be cross-examined on the lack of brain damage 

evidence.138 

VanDreumel also failed to work closely with the experts to provide them 

with adequate information and to ensure that the experts’ testimony, taken together, 

 

138 Kiles’s second state post-conviction counsel retained an expert to conduct 

neuroimaging, which demonstrated that Kiles had brain damage. (PFR2 Dkt. 28 Ex. 

25 at 1.) VanDreumel was not aware of this due to her failure to hire an expert to 

conduct the necessary and clearly indicated brain imaging. 

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was coherent. This was in part due to Clark’s almost-complete abdication of 

responsibilities in this case and to Mayberry’s lack of experience. While 

VanDreumel consulted with Mayberry, she repeatedly voiced the need to sit down 

with lead counsel, Mayberry, and Durand, who was supposed to be supervising 

Mayberry’s investigation. However, it appears that VanDreumel did not make this 

happen. When Mayberry sought to be involved in meetings with experts, 

VanDreumel declined, saying that she would handle the experts and that he should 

focus on the Yuma investigation. In the months before the trial, VanDreumel 

reached out to Clark asking for help, saying she was struggling to get the many 

experts in line by herself. When VanDreumel contacted experts, she noted the need 

to meet but said she did not have time, given her five capital cases and the time she 

was losing trying to get Clark up to speed. VanDreumel similarly conveyed to 

Mayberry in the months before trial that she was overwhelmed and ready to quit 

because she had not signed up to be in charge. All of this was happening while 

VanDreumel was attempting to address evidentiary and jury-instruction matters. 

(E.g., ROA 677, ROA 678, ROA 682, ROA 692.) 

As jury selection began in March 2006, VanDreumel had not finalized the 

mitigation presentation nor spoken to all experts about their testimony. Even after 

jury selection was complete and the penalty phase was beginning, VanDreumel did 

not even know who many of Mayberry’s intended lay witnesses were. 

Dr. Globus reached out to VanDreumel in late March 2006, and she 

responded that she was sorry she could not return his phone calls because she was 

so busy, but relayed instructions about his testimony via e-mail. VanDreumel emailed Dr. Hart—who had evaluated Kiles in 1990—in late April 2006, days before 

his testimony, to introduce herself and indicate what she hoped he would testify 

about. (1990 Trial State Ex. 8 at 1; ROA 304 Ex. A.) 

The resulting presentation of mental-health expert testimony “did not arise 

from the requisite informed judgment, and constituted ineffective assistance of 

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counsel.” See Bean, 163 F.3d at 1079 (internal quotation marks omitted) (finding 

counsel performed deficiently where they did not provide experts with records or 

prepare them to testify); see also Caro v. Woodford, 280 F.3d at 1254 (extending 

this to records that the experts do not specifically request and explaining that the 

“duty to provide the appropriate experts with pertinent information about the 

defendant is key to developing an effective penalty phase presentation”). Trial 

counsel performed deficiently in failing to adequately prepare their experts to 

testify. A failure to prepare witnesses is an “inadequac[y] in rudimentary trial 

preparation and presentation,” and as such, it is “not a strategic decision.” Bean, 

163 F.3d at 1079–80 (describing elements of adequate trial preparation as “an 

integral thread in the fabric of constitutionally effective representation”). 

4. Counsel’s unreasonable investigation and failure to provide 

experts with critical information resulted in the jury hearing 

a constitutionally inadequate mitigation presentation. 

Instead of a credible and persuasive mitigation presentation, counsel’s failure 

to conduct an adequate investigation resulted in a string of mental-health expert 

witnesses testifying on an assortment of topics. They did not build on each other or 

present a coherent story; instead, they undercut each other’s testimony. While some 

of the evidence that jurors heard may have been persuasive independently, it was 

contradicted by other testimony. This contradictory presentation underscored that 

counsel’s strategy was not based on a reasonable investigation. See Correll, 539 

F.3d at 949. Insofar as there was a theme presented in mitigation, it was that Kiles 

was a violent individual, which was prejudicial to Kiles. 

Defense’s mental-health experts failed to present a persuasive mitigation 

story for Kiles. Their contradictions cut against each other’s credibility. Further, 

defense counsel continued to frame Kiles’s story as one of aggression and substance 

use, instead of one about a traumatized man, suffering from brain damage and 

struggling to overcome his addictions, abuse, and other impairments. Because 

counsel did not properly investigate Kiles’s childhood sexual abuse, childhood 

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trauma, brain damage or neurotoxin exposure, the mental-health experts were left 

to speculate and make conclusions based on incomplete information, leaving them 

less credible to the jury and vulnerable on cross-examination. Had counsel 

conducted an adequate investigation, their mental-health experts would not have 

contradicted each other and undermined both the reliability of their diagnoses and 

their own credibility as experts before the jury. Instead, the jury heard a series of 

conflicting diagnoses even before the State presented its case. 

Dr. Globus diagnosed Kiles with polysubstance abuse, alcohol and cocaine 

dependency, chronic depression stemming from childhood, drug use resulting in 

psychotic decompensation, and some partial fetal alcohol syndrome. (Tr. Apr. 24, 

2006 at 107, 118; Tr. May 8, 2006 at 14.) 

Dr. Gaughan testified the day after Dr. Globus, but said that, while Kiles may 

have faced situations that caused him to feel depressed, he did not diagnose 

depression—“nothing pervasive or primary.” (Tr. May 9, 2006 a.m. at 37.) He 

found that Kiles did not have a psychotic disorder, though he did hallucinate under 

the influence of drugs. (Tr. May 9, 2006 a.m. at 36.) He diagnosed Kiles with PostTraumatic Stress Disorder (“PTSD”) resulting from his childhood (Tr. May 9, 2006 

at 53–64) and attention-deficit hyper-activity disorder (“ADHD”), which often 

follows from fetal alcohol exposure. (Tr. May 9, 2006 a.m. at 64–66.) As a result 

of his ADHD, Kiles developed substance abuse. (Tr. May 9, 2006 a.m. at 69.) 

Further, he diagnosed Kiles with obsessive compulsive disorder (“OCD”) and 

narcissistic personality traits. (Tr. May 9, 2006 a.m. at 75, 80.) 

Dr. Hart stood by his 1996 diagnoses of Kiles of long-standing dysthymia, 

depression, and pre-existing bi-polar disorder. (Tr. May 9, 2006 p.m. at 65.) 

Dr. Cunningham said that Kiles had substance abuse, hyperactivity, and 

attention-deficit issues, a probable learning disability, indications of attentiondeficit issues, cocaine psychosis, fetal alcohol exposure, and potentially OCD. (Tr. 

May 10, 2006 at 108, 131; Tr. May 11, 2006 at 35, 63; Tr. May 15, 2006 at 38.) 

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Counsel’s failure to conduct an adequate mitigation investigation and 

provide their experts with adequate records and other pertinent information resulted 

in an incomprehensible mess of conflicting diagnoses and other contradictory 

conclusions. For example, given the State’s focus on portraying Kiles as a highfunctioning individual who was not mentally impaired but chose a “selfish lifestyle” 

(Tr. May 22, 2006 at 60), and given defense’s lack of brain imaging, it was 

imperative that counsel prepare defense experts to present a coherent story of 

Kiles’s mental impairment. This included his performance in school, which was a 

focus of the State that they referenced in closing. (Tr. May 22, 2006 at 74.) Instead, 

while Dr. Cunningham referenced Kiles’s “academic failure” and Dr. Gaughan said 

he was a “marginal” student whose difficulty in math was “suggestive of a learning 

disorder,” Dr. Globus said Kiles was an average student in school. (Tr. May 10, 

2006 at 52; Tr. May 9, 2006 a.m. at 22; Tr. May 8, 2006 p.m. at 20.) 

Moreover, given the State’s focus on Kiles’s “choice” to drink, it was 

essential that counsel present a unified story on how and why Kiles turned to 

alcohol. However, the defense experts provided different reasons as to why Kiles 

began drinking: Dr. Globus testified it was due to Kiles’s chronic depression, 

stemming from childhood. (Tr. Apr. 24, 2006 at 118.) Dr. Gaughan testified it was 

as a result of impaired impulse control, stemming from Kiles’s attention-deficit 

disorder and fetal alcohol exposure. (Tr. May 9, 2006 a.m. at 69–70.) Dr. Hart 

testified that it was an attempt to self-medicate his long-standing dysthymia, 

depression, and bi-polar disorder. (Tr. May 9, 2006 p.m. at 65.) Dr. Cunningham 

attributed it to a constellation of things, including the fact that Kiles was given 

alcohol when he was five years old. (Tr. May 15, 2006 at 69.) Additionally, Dr. 

Globus testified that people are not predisposed to alcohol; instead, they are 

predisposed to depression, which leads them to alcohol. (Tr. May 8, 2006 at 22.) 

The very next day, both Drs. Gaughan and Hart testified about predisposition to 

alcohol (Tr. May 9, 2006 a.m. at 78; Tr. May 9, 2006 p.m. at 66), and a few days 

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later Dr. Cunningham testified about predisposition to alcohol and drugs (Tr. May 

15, 2006 at 47). The State took advantage of these inconsistencies in crossexamination and closing. 

The failure to provide each of these mental-health experts with proper 

records, to prepare them for testimony, and to properly investigate Kiles’s 

mitigation to form a reasonable mitigation strategy damaged each expert at trial. 

The following examples illustrate the problems that arose at trial due to counsel’s 

failures: 

Dr. Globus: Though Dr. Globus was a neuropsychiatrist, he was not a braindamage expert. He testified that he did not find Kiles’s severe lifelong headaches 

to be significant and did not explore it (Tr. Apr. 24, 2006 at 94), despite chronic 

headaches being an indication of head injury. In lieu of calling Kiles’s family 

members or a more qualified expert, counsel asked Dr. Globus to serve as Kiles’s 

social historian. Dr. Globus provided a cursory overview of Kiles’s child abuse, his 

parents’ dysfunctional relationship, his family history, and intergenerational cycles 

of abuse—going back to how Imojean’s great-grandfather was a slave in Louisiana. 

(Tr. Apr. 25, 2006 at 5–18, 21–24.) This was based on affidavits Kiles’s first state 

post-conviction counsel gathered in 1994.139 

Dr. Globus also appears to have testified in lieu of a substance-abuse expert, 

explaining various drugs and their effects, even though he explained his knowledge 

came from a textbook. (Tr. Apr. 25, 2006 at 63–68.) Instead of properly presenting 

drug addiction and impairment as a progressive disease that vitiates a person’s 

ability to make “choices” in the traditional sense of the word, he repeatedly used 

disparaging terms—terms that did not evoke any compassion—such as that Kiles 

 

139 At times, Dr. Globus was confused as to what he was supposed to be testifying 

to. (Tr. Apr. 25, 2006 at 21.) Counsel did not ask him to elaborate on any of these 

“tantalizing” leads, such as Kiles’s parents getting divorced and then remarrying, 

likely because he could not—he only knew what was contained in the affidavits he 

conspicuously read from. (Tr. Apr. 25, 2006 at 22.) 

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was “acting crazy,” “fried,” “tweaking,” and that people using drugs “freak out.” 

(Tr. Apr. 25, 2006 at 69, 71–75.) Juror questions asked at the end of each day of 

Dr. Globus’s testimony show that he did not adequately convey that addiction and 

depression were uncontrollable diseases that weighed in favor of leniency. For 

example, one asked about the percentage of people who return to drugs after 

choosing to seek treatment, and another asked: “To what degree is a pathological 

lack of personal responsibility contributory to substance abuse and/or addiction?” 

(Tr. Apr. 25, 2006 at 102–03.) At the end of his final day of testimony, the jury 

asked: “Do people suffering from depression typically act irresponsibly and/or fail 

to be accountable for their actions?” and “Can a person with depression still act 

within the legal constraints of society, without treatment?” (Tr. May 8, 2006 p.m. 

at 49–51.) To the last question, he answered: “most do.” (Tr. May 8, 2006 p.m. at 

51.) His answers were inadequate, failing to humanize Kiles and make a case for 

leniency. 

Dr. Gaughan: Counsel next called Dr. Gaughan, another psychiatrist. (Tr. 

May 9, 2006 at 4.) Again, his testimony was framed around a theme of a history of 

“violence” and “drug problems.” (E.g., Tr. May 9, 2006 a.m. at 17–18.) The gap in 

time between his evaluation in 2003 and his testimony, and counsel’s failure to 

prepare him, came out as well—he could not recall whether he had reviewed Kiles’s 

father’s military records: “You know, at this point, I don’t remember. I will be 

guessing that’s true.” (E.g., Tr. May 9, 2006 a.m. at 19.) 

Dr. Hart: When Mayberry first contacted Dr. Hart, he indicated that he did 

not fully stand behind the affidavit that the first state post-conviction counsel had 

prepared for him. VanDreumel appears to have not followed up on this concern. As 

a result, when testifying, Dr. Hart told the jury that he had not written the affidavit 

and that the prior lawyers had “put the grind on” him to sign it. (Tr. May 9, 2006 

p.m. at 82.) And, he enthusiastically agreed with the State’s theory on crossexamination: that it had been Kiles’s choice to use substances, despite knowing that 

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drinking caused him to be violent, stating: “Yes, the childhood then could have been 

abusive, but it doesn’t change the fact that he understood that if he used drugs he 

became violent.” (Tr. May 9, 2006 p.m. at 81–82.) He also undercut the defense 

theory that Kiles suffered from PTSD when he stated that science said it had to 

result from a single event, and he expressed during cross-examination that he shared 

the prosecutor’s doubts about Kiles having been abused as a child. (Tr. May 9, 2006 

p.m. at 79–81.) 

Dr. Cunningham: Dr. Cunningham testified for two-and-a-half days. While 

his testimony covered important information for the jury to hear and presented a 

broad scope of Kiles’s life and family history, it was largely focused on Department 

of Justice (“DOJ”) studies on the causes of criminal violence. (Tr. May 10, 2006 at 

20.) Thus, instead of explaining how Kiles’s trauma experiences and genetic 

dispositions left him mentally ill, brain-damaged, and struggling to overcome his 

resulting addiction, his testimony instead told the jury how Kiles ended up a violent 

person with “bad outcomes:” “psychological disorder, victimized relationships, 

drug dependency, criminal activity.” (Tr. May 10, 2006 at 37.) While Dr. 

Cunningham discussed risk factors and adverse developmental factors that shaped 

Kiles, and how trauma shapes a person throughout his life, the complete picture 

painted was that Kiles was a violent person who was not deserving of leniency. (See 

Tr. May 10, 2006 at 93–106, 135.) Counsel’s questions were framed in terms of 

violence and further supported this picture. (See, e.g., Tr. May 10, 2006 at 85.) 

Further, VanDreumel’s failure to adequately Dr. Cunningham led her to elicit 

testimony that seemed to suggest a connection between race and violence. At trial, 

Dr. Cunningham referenced a series of studies. One looked at delinquency rates in 

three Washington, D.C. neighborhoods, and reported that in these neighborhoods, 

80% of young men are “actively involved in criminal activity.” (Tr. May 11, 2006 

at 15.) He continued on to reference a NAACP study that, “at any given point in 

time in Washington, D.C. or Baltimore, about half of the black males are in the 

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criminal justice system.” (Tr. May 11, 2006 at 16.) He also cited a study that found 

that the rate of homicide among black males 18 to 24 is “about 30 times greater” 

than in the population as a whole. (Tr. May 11, 2006 at 17.) While Dr. Cunningham 

tried to explain that it is “not about race. It isn’t being black that creates that issue,” 

he failed. (Tr. May 11, 2006 at 16–17.) A juror submitted a question asking how 

Yuma could be compared to Washington, D.C., which the juror wrote was 99% 

black and had the highest crime rate in the nation.140 (Tr. May 11, 2006 at 88.) Race 

was on the jurors’ minds, and Dr. Cunningham was raising questions in at least 

some jurors’ minds on the connection between race and violent crime. Cf. Buck v. 

Davis, 137 S. Ct. 759, 775 (2017) (finding ineffective assistance where capitaldefense counsel called an expert who presented evidence that African-American 

client’s race increased his risk of being a continuing threat to society, reasoning that 

“race [is] among factors that are ‘constitutionally impermissible or totally irrelevant 

to the sentencing process’” (quoting Stephens, 462 U.S. at 885) and further that 

“[n]o competent defense attorney would introduce [racially prejudicial] evidence 

about his own client”). VanDreumel’s elicitation of this troubling testimony 

amounts to ineffective assistance. 

Had counsel conducted an adequate mitigation investigation, consulted with 

the necessary experts, and provided their experts with proper information, they 

could have presented Kiles to the jury as described above, in section B: a seriously 

impaired man, who suffered brain damage as the result of being hit by a car as a 

child, with mental illness that he inherited from his parents, all of which was 

compounded by childhood trauma of being raised in a terrifying and chaotic home 

with parents and a sister who abused him as the result of their own mental illness, 

 

140 In responding to the jury question, Dr. Cunningham again said that “black 

overrepresentation in criminality and violence” was not because of race. (Tr. May 

11, 2006 at 90–91.) He then added that most of the homicides among AfricanAmerican men were because “[t]hey’re killing their own.” (Tr. May 11, 2006 at 

92.) 

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substance addictions, and an intergenerational history of trauma. The jury could 

have learned that despite his life-long efforts to escape and project a veneer of 

normalcy, Kiles was ultimately unable to overcome his limitations, overcome his 

addictions, or escape the traumatic family dynamic that had shaped his life. Counsel 

failed to conduct sufficient investigation and engage in sufficient preparation to 

ensure that the experts could “present and explain the significance of all available 

mitigating evidence.” Correll, 539 F.3d at 942. 

Instead, based on the inadequate investigation, counsel arrived at an 

incoherent and ultimately harmful theme of mitigation: that Kiles was violent as a 

result of his violent parents and his drug abuse. Kiles’s traumatic childhood was 

framed as the reason why Kiles was violent, not why he was a mentally ill 

individual, warranting leniency. His substance use was similarly framed as the 

reason he became aggressive and violent before and leading up to the crime, instead 

of being framed as a disease that, when compounded with his brain damage, 

seriously impaired him. 

This was the mitigation VanDreumel offered the jury to request leniency for 

the premeditated murder by bludgeoning. These errors were only compounded by 

counsel’s incompetent handling of the State’s rebuttal evidence. 

5. Counsel provided ineffective assistance in failing to 

adequately investigate and address the State’s evidence and 

arguments in mitigation rebuttal. 

The State hired John Scialli, M.D., a psychiatrist, and John Moran, Ph.D., a 

clinical psychologist, who then interviewed Kiles together in 2003. (Tr. May 16, 

2006 at 16, 19.) Defense counsel failed to investigate these experts and the validity 

of their test results and reports, resulting in a failure to object to their improper 

testimony, an inadequate cross-examination, and a failure to properly prepare 

defense’s own witnesses to rebut the state’s witnesses. 

While the only statutory limit on the State’s rebuttal evidence at the 

mitigation phase is that it must be “relevant” to the mitigation, the rebuttal evidence 

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is also constrained by the Due Process Clause of the Fourteenth Amendment. State 

v. Hampton, 140 P.3d 950, 962 (Ariz. 2006); see also Gardner v. Florida, 430 U.S. 

349, 358 (1977) (plurality opinion) (“the sentencing process . . . must satisfy the 

requirements of the Due Process clause”). “Trial courts should not allow the penalty 

phase to devolve into a limitless and standardless assault on the defendant’s 

character and history.” Hampton, 140 P.3d at 963. Further, trial counsel had a duty 

under the Sixth Amendment to test the State’s case by adequately cross-examining 

the State’s witnesses on points critical to the defense. See Crawford v. Washington, 

541 U.S. 36, 61 (2004) (recognizing the “testing [of evidence] in the crucible of 

cross-examination” as central to the constitutional guarantee of reliability). 

To discharge their duty to provide effective assistance, counsel should have 

been present at the experts’ interviews of Kiles, interviewed the experts, 

investigated the experts’ opinions and the bases for their conclusions, and objected 

to the experts’ testimony. Tucker, 716 F.2d at 581 (“Pretrial investigation and 

preparation are the keys to effective representation of counsel. Courts have 

repeatedly stressed the importance of . . . interviewing of important witnesses.”); 

see also 2003 ABA Guideline 10.11 cmt. (“[c]ounsel should also object to and be 

prepared to rebut arguments that improperly minimize the significance of 

mitigating evidence”). 

However, VanDreumel was not present when the State’s experts interviewed 

Kiles, despite Dr. Scialli’s testimony that counsel could have attended and he often 

did interviews with defense counsel present. (Tr. May 16, 2006 at 22.) 

Compounding this error, counsel failed to interview the State’s experts in advance 

of trial, despite being permitted to do so.141 See Ariz. R. Crim. P. 14.1(b)(1); 

15.3(a)(2). VanDreumel also failed to adequately investigate how to undercut the 

State’s rebuttal evidence. See 2003 ABA Guideline 10.11 cmt. Instead, counsel sat 

 

141 In contrast, the State interviewed many of the defense experts before trial. 

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idly while the jurors heard the following inadequately challenged evidence that 

shaped their decision: 

Dr. Scialli: In a full day’s worth of testimony, Dr. Scialli gave misleading 

testimony on Kiles’s childhood abuse and his family’s histories of mental illness 

and addiction. (E.g., Tr. May 16, 2006 at 27–30.) He minimized Kiles’s struggles 

in school and his neurological impairments. (Tr. May 16, 2006 at 28.) He 

characterized Kiles as a violent person who was not impulsive but instead felt a 

need to hurt others as retribution for perceived transgressions. (Tr. May 16, 2006 at 

33–36.) He diagnosed Kiles with ASPD and attributed many mitigating factors, 

including Kiles’s impulsivity and his genetic predisposition to alcoholism, to 

ASPD.142 (Tr. May 16, 2006 at 40, 44, 56.) 

VanDreumel failed to object when Dr. Scialli testified on topics he was 

unqualified to discuss. For example, he testified that Kiles did not have Fetal 

Alcohol Syndrome (“FAS”), because such a diagnosis requires a low birth weight. 

(Tr. May 16, 2006 at 38.) This was false. Still, counsel neither objected to Dr. Scialli 

testifying outside his expertise nor cross-examined Dr. Scialli on the matter.143

Relatedly, counsel failed to impeach Dr. Scialli when his testimony differed from 

his report. For example, Dr. Scialli testified that Kiles did not have PTSD because 

he did not have symptoms such as “vigilance,” and he had not experienced any 

precipitating event like threatened death. (Tr. May 16, 2006 at 51.) However, he 

wrote in his report that, as a result of Kiles’s parents’ violence, Kiles was “vigilant” 

and a “sentry,” and that Kiles was shot at multiple times in his youth. Counsel failed 

 

142 Counsel should have objected to the prosecutor’s misconduct during his 

examination. For example, when Dr. Scialli could not answer a question about 

Kiles’s parents’ substance abuse, Powell answered his own question. (Tr. May 16, 

2006 at 29.) Counsel also failed to object when the State asked questions in a 

leading and prejudicial manner. For example, Powell asked Dr. Scialli: “Doctor, 

tell us about the defendant’s progression of violence.” (Tr. May 16, 2006 at 30.) 

143 Powell referenced this specific testimony in closing and highlighted that it came 

from a “doctor.” (Tr. May 22, 2006 at 72.) See Claim 9, infra. 

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to point out this obvious inconsistency in testimony in cross-examination. (Tr. May 

16, 2006 at 72–130.) 

Dr. Scialli also provided damaging testimony dismissing the genetic 

component of substance and alcohol addiction and, instead, suggested that 

addiction can be attributed to ASPD. (Tr. May 16, 2006 at 43–44.) He emphasized 

that even for an alcoholic, the decision to drink is a choice. (Tr. May 16, 2006 at 

47.) While counsel attempted to cross-examine Dr. Scialli on this issue, counsel did 

not call or recall a witness, such as an FAS expert or a substance-abuse expert, to 

rebut Dr. Scialli’s harmful and false claims. Counsel contacted Dr. Cunningham 

after Dr. Scialli’s testimony to ask about the link between genetics and non-alcohol 

substance abuse, and the expert provided scientific studies that rebutted Dr. Scialli’s 

conclusions, but by that time it was too late to cross-examine Dr. Scialli with the 

information. She did not recall Dr. Cunningham to the stand. 

Through Dr. Scialli, the State propounded its theory that Kiles was a violent 

person with ASPD who sought to inflict violence on anyone who he perceived as 

slighting him. (Tr. May 16, 2006 at 32–36.) Powell finished his direct examination 

of Dr. Scialli by returning to his theme of choice: He asked if Kiles’s substance 

addiction “in any way negated his ability to make choices” including on the night 

of the crime. Dr. Scialli answered no. (Tr. May 16, 2006 at 71.) Counsel did not 

object, allowing the jury to believe that relevant mitigation was limited to that with 

a casual nexus to the crime or that which proved the statutory (G)(1) mitigator. 144 

Dr. Moran: During his day-long testimony, Dr. Moran mainly read aloud the 

 

144 A.R.S. § 13-703(G)(1) (renumbered § 13-751(G)(1)) provided that the sentencer 

“shall consider as mitigation” that the “defendant’s capacity to appreciate the 

wrongfulness of his conduct or conform his conduct to the requirements of law was 

significantly impaired, but not so impaired as to constitute a defense to 

prosecution.” VanDreumel was ineffective for failing to allege this as a mitigating 

factor. There was no justification for completely foreclosing this avenue. A wealth 

of information, of which VanDreumel was aware, supported a “(G)(1)” finding in 

this case, including Kiles’s mental impairments, brain damage, mental illness, and 

intoxication. However, VanDreumel did not allege any statutory mitigators. 

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results of the Millon Clinical Multiaxial Inventory-III (“MCMI”) test, which he 

used to diagnose Kiles with ASPD. (Tr. May 17, 2006 at 4–57.) 

The MCMI was widely discredited as a mental-health assessment by the time 

of trial. It is not a diagnostic measure of mental disorders, nor does it formally 

evaluate the DSM criteria for psychiatric diagnoses. See Richard Rogers, Forensic 

Use and Abuse of Psychological Tests: Multiscale Inventories, 9(4) Journal of 

Psychiatric Practice 316, 319 (2003) (hereinafter “Rogers”).145 The MCMI is 

particularly unreliable in a forensic context, because there is no “normal” reference 

group and the test “exaggerates an individual’s psychopathology.” Gerald Young, 

et. al., Causality of Psychological Injury: Presenting Evidence in Court, Springer 

(2007) (“In forensic work, in contrast, the exaggeration can make a ‘normal’ 

individual appear psychologically pathological.”) Most importantly, “MCMI-III 

scales cannot be used to diagnose DSM-IV personality disorders; the test may 

generate errors in about 80% of diagnosed cases.” Rogers at 319. Experts have 

pointed to the diagnosis of ASPD as an improper use of the MCMI: “Should 

elevations on these scales–even marked ones—be seen as evidence of antisocial 

personality disorder? The answer is definitely not.” Rogers at 319–20. Courts have 

forbidden the use of the MMPI, a similar multiscale inventory, because of the 

“inadequacy of the correlation factors and the validity factors.” Usher v. Lakewood 

Engineering & Mfg. Co., 158 F.R.D. 411, 413 (N.D. Ill. 1994.) All of this was 

known for years before the penalty phase; however, counsel inexplicably failed to 

object to the use of the tests, and to Dr. Moran’s testimony about the substance of 

his results. (See Tr. May 17, 2006.) She failed to offer any expert to rebut it.

 

145 Multi-scale inventories like the MCMI are sometimes referred to as “objective 

tests” because answers are input into a testing service, which spits out a series of 

potentially responsive answers. However, “the term ‘objective tests’ is a 

misnomer. . . . Although the scoring is objective, the interpretation is not.” Rogers

at 316. The clinician chooses from multiple set interpretations; this leads to cherrypicking and confirmation-bias errors, which Dr. Moran did. (Tr. May 17, 2006 at 

23 (“I included in the report only information that I thought was confirmed.”).) 

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Dr. Moran’s resulting testimony was highly damaging, painting a picture of 

Kiles as someone who exploited others and who did not think that rules applied to 

him. (Tr. May 17, 2006 at 26.) Beyond diagnosing Kiles with ASPD, Dr. Moran 

expanded on the MCMI results without support, noting for example that “[t]he 

highest elevation on [Kiles’s] Millon is sadism. And sadism is a person who derives 

pleasure from inflicting pain or humiliation.” (Tr. May 17, 2006 at 29.) He further 

testified that 

So he’s an impulsive person who instead of taking 

responsibility and saying I shouldn’t get angry, I have to 

find some way of approaching this that’s polite and 

acceptable and constructive, he’s like I’m angry. It’s okay 

if I express it I think because he felt that he was entitled, he 

had some special entitlement to be the person that he was. 

. . . And that he’s, you know, he’s a dangerous person 

because of that sadistic quality and because of the fact he 

doesn't feel empathy. 

(Tr. May 17, 2006 at 30.) Counsel did not object to Dr. Moran’s “explanation” of 

the already-invalid MCMI results, which were pure speculation. Counsel also did 

not object when Dr. Moran used the MCMI results to rebut the concept of mitigation 

in general: “So again, we’re looking at his way of thinking. Is he taking personal 

responsibility or is he saying I behaved badly because of things that happened to 

me or because people mistreated me.” (Tr. May 17, 2006 at 28–29); see also 2003 

ABA Guideline 10.11 cmt. n.315 (noting that counsel should object on Eighth 

Amendment grounds to rebuttal testimony that seeks to nullify virtually all 

mitigation evidence). 

Rather than framing Kiles’s substance addiction as an illness, Dr. Moran used 

it as an example of his belief that the rules did not apply to him. He explained it as 

a method which Kiles used to relieve himself of the guilt he normally felt about 

discharging his hostile impulses, which Dr. Moran summed up as: “instant A-hole, 

just add alcohol.” (Tr. May 17, 2006 at 33–34.) Still, VanDreumel did not object. 

 During cross-examination, VanDreumel neglected to confront Dr. Moran 

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with the well-established problems with the MCMI, the basis of hours of disastrous 

testimony. See Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) (even when 

defense counsel elicited a concession from state expert, counsel was deficient for 

having failed to take measures to understand the testing performed and the meaning 

of the results). While she got Dr. Moran to say that the results of the MCMI testing 

only “probably” applied to Kiles (Tr. May 17, 2006 at 64), that hardly sufficed to 

counteract the damage. 

 Dr. Moran testified next about another inapplicable and speculative test, 

which he said could be used to predict future violent behavior: the Violence Risk 

Assessment Guide (“VRAG”). (Tr. May 17, 2006 at 48.) The VRAG was not in Dr. 

Moran’s report, and on this basis alone, counsel should have objected to Dr. 

Moran’s testimony. Moreover, the VRAG was both widely criticized and 

inapplicable to Kiles. See Daryl G. Kroner, A Coffee Can, factor analysis, and 

prediction of antisocial behavior: The structure of criminal risk, Internat’l J.L. & 

Psychiatry, 28(4), 360–74 (2005) (finding that the VRAG did not predict postrelease failure better than randomly-generated instruments); See John M. Fabian, A 

Literature Review of the Utility of Selected Violence and Sexual Violence Risk 

Assessment Instruments, J. Psychiatry & L., 34(3), 307–50 (2006) (explaining that 

the VRAG was meant to measure short-term, low-risk offenders’ risk of 

reoffending when released from secure confinement, not to measure the risk of 

reoffending in a high-security prison). The State wielded the VRAG to rebut Dr. 

Cunningham’s testimony on Kiles’s upbringing and Aiken’s testimony on his 

likelihood of future lack of violence in prison. (Tr. May 17, 2006 at 53–54.) 

 Powell concluded his direct examination by having Dr. Moran testify that 

Kiles was able to make the choice to stop drinking, and that none of the factors that 

the mental-health experts on both sides had identified—including Kiles’s 

childhood, substance abuse, and ASPD—negated Kiles’s ability to make choices 

the night of the crime. (Tr. May 17, 2006 at 55–56.) Counsel should have objected 

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to the State’s continued effort to mischaracterize the nature of the mitigation at issue 

and to mislead the jury that a causal nexus was required. 

VanDreumel had Dr. Moran’s report, which indicated that he was going to 

discuss the MCMI, in 2003, years ahead of trial. Still, counsel did not make any 

attempt to investigate its validity with the help of experts, and she did not prepare 

defense experts to rebut it in advance. She did not try to prevent the use of 

invalidated testing, she did not interview Dr. Moran before he testified, and she did 

not object to this testimony at trial. The 2003 ABA Guidelines obligate counsel to 

“consider witnesses familiar with and evidence . . . that . . . would rebut or explain 

evidence presented by the prosecutor” and “expert and lay witnesses along with 

supporting documentation . . . to rebut or explain evidence presented by the 

prosecutor.” 2003 ABA Guideline 10.11(F)(1),(2). There is no evidence that it was 

a strategic decision to conduct at most a perfunctory investigation of the State’s 

experts and their reports. Counsel’s failure was deficient. 

Dr. Scialli and Dr. Moran reframed and mischaracterized Kiles’s mitigation 

evidence to portray him as a violent, anti-social pleasure-seeker who sought to get 

high and hurt people, instead of a man with a constellation of impairments including 

substance addiction, whose traumatic abuse was crushingly formative. Each 

testified for a whole day, stating unsupported conclusions that painted Kiles as a 

monster, with the imprimatur of expertise. They used subjective, irrelevant tests to 

discredit the already disjointed mitigation evidence Kiles’s counsel presented, 

minimizing Kiles’s impairments and psychological trauma to support the narrative 

that Kiles was undeserving of leniency. 

Had counsel objected to this testimony before it was introduced, or objected 

to the State’s experts’ testing measures, there is a probability the jury never would 

have heard any of this damaging evidence. Moreover, counsel should have 

prepared, and recalled, if necessary, defense experts to rebut the invalid testing and 

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conclusions of the State’s witnesses.146 It was imperative that counsel at least recall 

Dr. Cunningham to explain to the jury that ASPD and the effects of trauma and 

mental illness are often conflated, as well as that substance addiction is not a choice. 

But counsel did not. Instead, the last testimony the jurors heard before determining 

whether Kiles should live or die was two full days of the State’s inflammatory, 

unsubstantiated, and largely unchallenged witnesses. Had counsel performed 

adequately, it would have substantially “altered the sentencing profile presented” 

to the jury, Strickland, 466 U.S. at 700, and there is a reasonable probability that at 

least one juror would have voted for life. See Bemore, 788 F.3d at 1176. 

6. Counsel’s mitigation-phase closing argument constituted 

deficient performance that prejudiced Kiles. 

 Competent counsel must “take advantage of all appropriate opportunities to 

argue why death is not [a] suitable punishment for their particular client.” 2003 

ABA Guideline 10.11(L). There is perhaps no more important moment to fulfill this 

obligation than closing argument. “The right to effective assistance extends to 

closing arguments. . . . Closing arguments should ‘sharpen and clarify the issues for 

resolution by the trier of fact. . . .’” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) 

(citation omitted) (quoting Herring v. New York, 422 U.S. 853, 862 (1975)); see 

also Strickland, 466 U.S. at 669. 

 However, VanDreumel failed to use this critical opportunity and performed 

deficiently. VanDreumel failed to argue that there was mitigation to warrant 

leniency for all three crimes for which Kiles faced death. Instead, she spent an 

inordinate amount of the closing arguing the circumstances supporting residual 

doubt that Kiles was responsible for the deaths of the two child victims. (Tr. May 

22, 2006 at 48–56, 76–77.) That this affected the jury is clear given that the jury 

 

146 For example, counsel could have presented expert testimony explaining that the 

DSM-IV-TR requires that, to diagnose any personality disorder, the underlying 

behavior cannot be due to the effect of a medical condition such as head trauma. 

DSM IV-TR at 630. Brain imaging evidence would have addressed this as well. 

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sentenced Kiles to death for the adult victim, but failed to reach a verdict on the two 

child victims—surely an unusual result. Despite not receiving death on two counts, 

Kiles was still sentenced to death at the end of the mitigation phase. Counsel failed 

to make the case for life with respect to all three counts. 

Instead of making the case for life, VanDreumel continued to push the 

narrative that everything in Kiles’s life had made Kiles inherently and inevitably 

violent. She argued that, based on Kiles’s life, “subsequent violence should not 

surprise anybody in here,” and that abused children “are more likely to be arrested 

as juveniles and adults for violent crime.” (Tr. May 22, 2006 at 31, 32.) She asked: 

“Does it surprise anybody that Alvie’s crime was a crime of domestic violence?” 

(Tr. May 22, 2006 at 40.) In addition to repeating that Kiles was violent, framing 

the crime as domestic violence was confusing, as the crime had not been presented 

that way—indeed, this contradicted the defense’s theory that this was an impulsive 

crime, and not based on the patterns inherent in domestic violence. This was 

particularly damaging given that one of the jurors had written extensively on his 

questionnaire that his father had murdered his mother, a “victim of domestic 

violence.” Counsel magnified the error later by again later characterizing the crime 

as “horrific domestic violence committed by Alvie.” (Tr. May 22, 2006 at 43.) 

VanDreumel minimized Kiles’s serious mental illness, neurological 

impairments, brain dysfunction, and addiction as “mental health problems, 

educational difficulties, alcohol and drug abuse.” (Tr. May 22, 2006 at 32.) She 

repeatedly described his addiction as “drinking and drugging.” (Tr. May 22, 2006 

at 41.) VanDreumel asked: “Did Alvie drink to self-medicate to quash the 

depression? Don’t know. That’s one of the reasons people use drugs.” (Tr. May 22, 

2006 at 81.) This failed to sharpen the issues for consideration and contradicted the 

testimony of defense experts, further confusing the issues. Instead of framing 

cocaine’s effect as mental impairment, counsel framed it as: “cocaine causes 

aggression. Cocaine causes hostility. Cocaine causes impulsivity.” (Tr. May 22, 

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2006 at 34.) Counsel needlessly highlighted to the jurors an image of Kiles as a 

violent, aggressive man. 

VanDreumel highlighted inconsistencies in defense experts’ testimony, 

listing all of their diagnoses on large sheets of paper, despite the fact that some had 

directly contradicted each other, noting “you know, for the most part, all of the 

doctors agree, even the State’s doctors.” (Tr. May 22, 2006 at 33.) She inherently 

highlighted the lack of consensus. The bottom line, she said, was that “Alvie acts 

impulsively” (Tr. May 22, 2006 at 34), and not that Kiles was neurologically 

impaired, brain-damaged, or mentally ill.147 (Tr. May 22, 2006 at 31.) 

Moreover, VanDreumel early in her closing repeated the State’s greatest 

theme: that Kiles “had a choice, he chose drugs, he could have just stopped.” (Tr. 

May 22, 2006 at 28.) She further argued that she had no “quarrel” with the State’s 

diagnoses, despite the extended time she spent eliciting testimony from her own 

witnesses that Kiles did not have ASPD, and despite the State’s inflammatory, 

damaging testimony that included for example, that Kiles was a sadist. (Tr. May 

22, 2006 at 38; Tr. May 17, 2006 at 29.) After she effectively conceded the State’s 

damaging diagnoses, she next argued that the only question was how he ended up 

that way. This was not going to convince any juror that leniency was warranted. 

 Had Kiles’s counsel offered the jury some explanation as to how Kiles’s 

mitigation warranted leniency, there is a reasonable probability that the outcome of 

the proceeding would have been different. See Smith v. Spisak, 558 U.S. 139, 155 

(2010) (recognizing the importance of having fresh in jurors’ minds the connection 

between mitigating circumstances and the crimes). Had VanDreumel focused on 

why leniency was warranted for all three convictions, or had she not undermined 

 

147 Counsel made odd arguments based on race to try to explain why Kiles had not 

been forthcoming about his traumatic childhood: “And don’t even think about 

speaking badly about your parents if you are black because there is a real loyalty 

there. It is embedded in the culture. Did it take this trial for us to learn that?” (Tr. 

May 22, 2006 at 39.) 

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her own presentation by framing Kiles as a violent person lacking morality, there is 

a reasonable probability that the outcome of the proceeding would have been 

different. Kiles was thus prejudiced by counsel’s deficient performance at closing 

argument. See Strickland, 466 U.S. at 669. 

7. Counsel provided ineffective assistance when she failed to 

object to numerous aspects of the State’s closing argument. 

Trial counsel failed to object during the State’s closing argument to several 

instances of misconduct. See Claim 9, infra.

The purpose of closing argument “is to explain to the jury what it has to 

decide and what evidence is relevant to its decision.” Sandoval v. Calderon, 241 

F.3d 765, 776 (9th Cir. 2000). Arguments that frustrate this purpose are improper. 

Id. When a prosecutor crosses the line of permissible advocacy, a defendant relies 

on his attorney to challenge the misconduct and seek corrective action, by objecting, 

urging curative or limiting instructions, or seeking a mistrial. See Zapata v. 

Vasquez, 788 F.3d 1106, 1116 (9th Cir. 2015) (finding ineffective assistance for 

failing to object to prosecutor’s closing). Counsel’s decision to sit idly during the 

prosecutor’s misconduct was unreasonable. 

Most egregiously, the prosecutor urged jurors to disregard the law and the 

Constitution’s requirements. Noting that the instructions permitted the jurors to 

sentence Kiles to life based on mercy without finding any specific mitigation 

proven, Powell argued “that might be the law, but is that justice? Is that right?” (Tr. 

May 22, 2006 at 75.) 

Additionally, the prosecutor misled the jury on the law. For example, he 

argued that, while he agreed that childhood trauma affects adult behavior and that 

substance use affects people, it only affects moral culpability “when it takes away 

volition, when a person cannot control, when it’s to that degree or to that extent.” 

(Tr. May 22, 2006 at 58.) The State argued throughout its closing that Kiles retained 

the ability to make choices, and so, leniency was not warranted. For example, 

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Powell argued that, even if Kiles did suffer child abuse, the jury had to decide “the 

grade agent, how much is there, if it was really so bad that it took away his ability 

to make choices, to make proper choices.” (Tr. May 22, 2006 at 73–74; see also Tr. 

May 22, 2006 at 58–59, 71.) This implied that the jury could only consider 

mitigation evidence if it rendered a defendant incapable of volition or if it had a 

causal connection to the crime.148 The Supreme Court has repeatedly held this is 

unconstitutional. See, e.g., Tennard v. Dretke, 542 U.S. 274, 284–87 (2004). 

The prosecutor also argued non-statutory aggravating factors and urged 

jurors to consider mitigation evidence as aggravation, in violation of the Due 

Process Clause. See A.R.S. § 13-703(F) (1988). For example, the State argued that 

Kiles’s model behavior in prison should weigh against him, as it showed he could 

do the right thing when he wanted to. (Tr. May 22, 2006 at 59, 61.) The prosecutor 

told the jury to consider the victims, as “we have aggravation as well as mitigation.” 

(Tr. May 22, 2006 at 75.) This was improper. See Humphries v. Ozmint, 397 F.3d 

206, 235 (4th Cir. 2005) (Wilkinson, C.J., dissenting) (arguing to overturn a death 

sentence where the State urged the jury to weigh the victim’s life against the 

defendant’s, as “[n]o person should be executed in America on the theory that his 

life is of less worth than that of someone else.”). 

The prosecutor also misrepresented the evidence in order to mislead the jury. 

See Darden v. Wainwright, 477 U.S. 168, 181–82 (1986); see also Berger, 295 U.S. 

at 88 (prosecutor’s improper suggestions “are apt to carry much weight against the 

accused when they should properly carry none”). For example, Powell emphasized 

that Dr. Scialli testified that one has to have low birth weight to be diagnosed with 

 

148 The Ninth Circuit has held that Arizona’s use of a causal-nexus test was contrary 

to clearly established federal law. McKinney v. Ryan, 813 F.3d 798, 821 (9th Cir. 

2015) (en banc). Although the Arizona courts paid lip service to Tennard at the time 

of Kiles’s penalty-phase, see, e.g., State v. Anderson, 111 P.3d 369, 391 (Ariz. 

2005), the errors continued in part because prosecutors urged juries to give no 

weight to mitigation evidence alleged not to have a causal nexus. 

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fetal “exposure or to have any type of syndrome or anything like that.” (Tr. May 

22, 2006 at 72.) Because Kiles did not have a low birth weight, “[w]e don’t have 

anything there.” (Tr. May 22, 2006 at 72.) This was false, as Dr. Scialli was 

specifically discussing FAS, not any of the related disorders. (Tr. May 16, 2006 at 

37.) Dr. Cunningham and Dr. Gaughan made clear that FAS and fetal alcohol 

exposure are not the same thing and that Kiles had the latter. (Tr. May 9, 2006 a.m. 

at 40–41; Tr. May 15, 2006 at 38.) As another example, Powell stated that Kiles 

was never in special education or “anything like that,” when Kiles had been placed 

in a vocational program in high school. (Tr. May 22, 2006 at 74.) 

Further, the prosecutor stated that Kiles cut a man with a box-cutter “just 

because of a foul in a basketball game”—conveniently leaving out that the man had 

knocked out Kiles’s teeth. (Compare Tr. May 22, 2006 at 61 with Tr. May 9, 2006 

p.m. at 34.) He said that Kiles had assaulted his brother-in-law, but made no 

mention of the fact that Kiles was protecting his sister from a beating. (Compare

Tr. May 22, 2006 at 62 with Tr. May 9, 2006 a.m. at 27.) 

The prosecutor argued facts outside of the record when he told the jury a 

detail of the crime that was not in the evidence; it had come up only at Kiles’s 1990 

hearing. (Tr. May 22, 2006 at 63 (stating that Kiles took Gunnel’s food stamps 

while she was in the shower); Tr. Feb. 7, 1990 at 133; PFR2 Dkt. 27 Ex. 23 at 2.) 

The prosecutor improperly vouched for evidence presented at trial. See 

United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005). For example, he 

repeatedly used the term “we know” to describe a sequence of events that had not 

been proven. (Tr. May 22, 2006 at 64.) The Ninth Circuit has specifically cautioned: 

“We emphasize that prosecutors should not use ‘we know’ statements in closing 

argument.” Younger, 398 F.3d at 1191. 

 Counsel also failed to object to Powell’s improper inflammatory comments. 

See Zapata, 788 F.3d at 1114 (declaring inflammatory statements designed to 

appeal to jury’s passions improper, and ineffective assistance where defense fails 

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to object). For example, the prosecutor told the jurors that life outside of prison was 

“like a jungle for [Kiles],” relying on racist and prejudicial stereotypes. (Tr. May 

22, 2006 at 61.) “The Constitution prohibits racially biased prosecutorial 

arguments.” McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987). Additionally, the 

prosecutor preyed on the jurors’ fears, telling them that, if Kiles was not sentenced 

to death and put in solitary confinement, he would be around other people and 

“someone might touch him inappropriately. And who knows what will happen at 

that time.” (Tr. May 22, 2006 at 61.) This was misleading, as Kiles had not been on 

death row in the eight prior years and had been a model inmate. (E.g., Tr. Apr. 27, 

2006 at 32.) 

 The prosecutor’s misleading and prejudicial remarks prejudiced Kiles by 

creating the risk that he was sentenced to death in an arbitrary and capricious 

manner. See Furman, 408 U.S. at 274 (Brennan, J., concurring). Had trial counsel 

objected and the trial court appropriately restrained the State, there is a reasonable 

probability that the outcome of the sentencing proceeding would have been 

different. The failure was also prejudicial because it limited appellate review to 

independent review of the “propriety of the sentence.” See Kiles, 213 P.3d at 187. 

8. Counsel’s deficient performance at the mitigation phase 

prejudiced Kiles. 

As discussed above, defense counsel conducted a deficient mitigation 

investigation. Had counsel adequately investigated and prepared for mitigation, 

Kiles’s jury would “have been faced with a strikingly different and more accurate 

picture” of Kiles’s life circumstances. Hovey v. Ayers, 458 F.3d 892, 927 (9th Cir. 

2006). A defendant is prejudiced where there is a reasonable probability that at least 

one juror would have been persuaded to vote for life by what could have been 

presented in mitigation had counsel not performed deficiently. See, e.g., Sears, 561 

U.S. at 954–55. 

In sum, because of counsel’s insufficient investigation and unreasoned 

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decisions, the mitigation presentation consisted of two lay witnesses who did not 

know Kiles well, but who suggested he had a fine childhood and was a wellfunctioning individual; a member of the defense team who testified to second- and 

third-hand information, and who gave the impression that no family member was 

willing to testify on Kiles’s behalf; multiple witnesses who testified that Kiles 

behaved well in prison—which, when not given the appropriate neuropsychological 

context, implied that Kiles could behave well when he chose to do so; mental-health 

experts who failed to properly describe addiction as a disease and conveyed that 

Kiles was violent; and Dr. Hart, who essentially testified for the State. 

This was the mitigation VanDreumel offered the jury to request leniency for 

the premeditated murder of Gunnel. 

The State followed this ineffectual presentation by offering two full days of 

testimony by experts who hammered that Kiles had ASPD and was a selfish, violent 

person who enjoyed inflicting pain on others. They dismissed Kiles’s serious 

mental illness, childhood trauma, and substance addiction, instead attributing 

everything to his ASPD and violent choices. Dr. Moran read from and expanded on 

the baseless MCMI results as if they were fact. VanDreumel did not object to any 

of this and failed to meaningfully cross-examine the State’s experts, underscoring 

the impression of validity. 

VanDreumel herself focused on a theme of Kiles as an inherently violent and 

aggressive individual with a quick temper, which she drove home in questioning 

witnesses and in closing. (E.g., Tr. May 9, 2006 a.m. at 67–68; Tr. May 22, 2006 at 

31, 38, 45.) She minimized his mental illness, substance addiction and childhood 

trauma. Thus, she framed the question to the jury as whether this violent and 

aggressive man (who may have become this way through no fault of his own, but 

instead due to his family and how he was raised) warranted leniency. Had counsel 

conducted an adequate investigation, the discussion at the mitigation phase would 

not have been about a violent man, but a mentally ill man, struggling to overcome 

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lifelong trauma and substance addiction. 

With an adequate mitigation investigation and testimony from a trauma 

expert, an addiction expert, and a brain-damage expert, the jury would have heard 

a properly contextualized mitigation story. These experts could have shown the jury 

how Kiles suffered brain damage, and explained how it impaired his ability to cope 

with the world around him. A substance-abuse expert could have explained the truth 

about addiction: it is a disease, not a choice, that over time damages a person’s brain 

and ability to engage in impulse control and emotional regulation. A trauma expert 

could have explained how the instability and constant state of fear that Kiles 

experienced as a child—and the family dysfunction that continued throughout his 

life—shaped him and impaired his ability to respond to life’s challenges. These 

experts could have explained how Kiles’s organic brain damage, combined with his 

traumatic childhood and addiction, caused a number of deficits that seriously 

impaired his ability to cope with the world around him, despite his desperate efforts 

to overcome his limitations and make a better life for himself. A brain-damage 

expert, a substance-abuse expert and a trauma expert would have contextualized 

Kiles’s brain damage, traumatic childhood and addiction and explained why these 

factors warranted leniency. These experts could have humanized Kiles as mentally 

ill man. 

Further, an adequate investigation would have undercut key elements of the 

State’s case. First, appropriate and adequately prepared experts would have been 

able to directly undercut the State’s claims about Kiles’s ASPD and the MCMI 

results. Further, the State would not have been able to hammer its point about the 

lack of concrete brain damage evidence. This would have provided a counterweight 

to the State’s efforts to reframe the results of Kiles’s mental illness, addiction, and 

life-shaping trauma as signs of a personality disorder. Additionally, it would have 

counteracted the State’s claims that Kiles’s mental-health and background-centered 

mitigation was all based on Kiles’s self-report—which he had a motive to lie about. 

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(Tr. May 9, 2006 p.m. at 24, 26; Tr. May 15, 2006 at 27–29, 50; Tr. May 22, 2006 

at 72.) 

Had counsel provided effective assistance to Kiles, the question to the jury 

would not have been whether this violent man had the capacity to make choices, 

but instead whether a mentally ill man in the throes of addiction warranted mercy. 

Had Kiles’s jury been presented with this more accurate picture, there is a 

reasonable probability that at last one of Kiles’s jurors would have imposed a 

sentence less than death. Hovey, 458 F.3d at 927. This is especially true where the 

jury “ultimately return[ed] a death verdict [for one death] and a verdict of life 

without parole [for the other deaths].” Bean, 163 F.3d at 1081. Because counsel 

failed to present a variety of critical and compelling mitigation, counsel’s error 

undermines confidence in the outcome of Kiles’s mitigation-phase hearing. 

F. Counsel provided ineffective assistance in failing to request a

special verdict form listing which mitigating circumstances the

jury found proven. 

Trial counsel performed deficiently and prejudiced Kiles when counsel failed 

to ask that the court use special verdict forms at the mitigation phase, which would 

have clarified what mitigating circumstances the jury found proven in imposing 

death. The Eighth and Fourteenth Amendments require states to provide a 

mechanism for meaningful direct review of death sentences. Gregg v. Georgia, 428 

U.S. 153, 197–98 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); see 

also State v. Brewer, 826 P.2d 783, 790 (Ariz. 1992). To achieve such meaningful 

review, “it is important that the record on appeal disclose to the reviewing court the 

considerations which motivated the death sentence in every case in which it is 

imposed.” Gardner, 430 U.S. at 361 (plurality opinion). Arizona law helps to ensure 

meaningful review in non-capital cases, for which the court is required to state for 

the record the mitigating and aggravating factors it considers and applies when 

imposing any sentence other than the presumptive term. A.R.S. § 13-701(C); State 

v. Harrison, 985 P.2d 486 (Ariz. 1999). However, Arizona law fails to offer such 

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protections to capital defendants. Arizona’s death-penalty statute does not require 

the jury to identify in its verdict form which mitigating circumstances individual 

jurors deemed proven. See A.R.S. § 13-701 (1988). Counsel must request that 

specific findings be made. Because Kiles’s counsel did not make such a request, the 

verdict forms in Kiles’s case reflect only the ultimate sentence the jury imposed for 

each first-degree murder conviction. (See ROA 919 at 1–3.) 

As a result, when the Arizona Supreme Court conducted its independent 

review of the “aggravation, mitigation, and the propriety of the sentence” in Kiles’s 

case, Kiles, 213 P.3d at 187, it did so without the benefit of knowing which 

mitigating circumstances jurors had found proven. In other words, the court 

conducted its appellate review without knowing the considerations that motivated 

the death sentence. That appellate review was not the meaningful review 

contemplated by Gregg. See Gardner, 430 U.S. at 361 (plurality opinion). That such 

a review—done without information on what informed the jury’s decision—could 

not have been meaningful is especially true in this case, where the jury was asked 

to consider 30 mitigating circumstances and where the jury determined that death 

was the appropriate sentence on one count but that life imprisonment was 

appropriate for other counts. (See Tr. May 22, 2006 at 19–21; ROA 919 at 1–3.) 

Counsel’s failure to request special verdict forms indicating which mitigating 

circumstances the jurors had found proven deprived Kiles of an adequate appellate 

review and violated his rights under the Eighth and Fourteenth Amendments to the 

U.S. Constitution. Kiles was thus prejudiced by counsel’s deficient performance. 

G. Counsel were ineffective in failing to object to juror questionnaires 

and jury instructions that primed the jury to find that death was 

the appropriate sentence. 

The Eighth Amendment demands a heightened degree of “reliability in the 

determination that death is the appropriate punishment in a specific case.” 

Woodson, 428 U.S. at 305. A sentencer must make an “individualized determination 

on the basis of the character of the individual and the circumstances of the crime.” 

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Stephens, 462 U.S. at 879. Moreover, the Sixth Amendment requires that an 

independent and impartial jury, not a judge, make the requisite findings for a death 

sentence. See Ring, 536 U.S. at 609. Consequently, for a death sentence to pass 

constitutional muster, an independent jury must impose it after an individualized 

determination of the appropriate punishment. 

Counsel provided ineffective assistance in failing to object to the juror 

questionnaires and the jury instructions on the grounds that they conditioned the 

jury to favor the death penalty. As a result, Kiles did not receive an independent or 

individualized jury sentencing. 

From the first part of the penalty phase, jurors were given the impression that 

they needed to be comfortable with imposing death because their role was to 

sentence Kiles to death. In the questionnaire, 10 of the 67 questions were about the 

death penalty, whereas only two asked about a life sentence. Moreover, the 

questions implied that it was the jury’s duty to impose the death penalty. For 

example, question 56 asked: 

Assume you are on a jury to determine the punishment for 

a defendant who has already been convicted of murder and 

the law gives you a choice of imposing death or life 

imprisonment with parole eligibility after 25 years. Please 

check the statement below that best describes your feelings. 

Check only one. 

Jurors were given the following four options, all focused on the death penalty: 

(1) I cannot vote to give the death penalty under any 

circumstances. 

(2) I am opposed to the death penalty but could vote to 

impose it in a proper case. 

(3) My decision on whether to impose the death penalty 

would depend upon the facts and circumstances of the case. 

(4) I would vote to impose the death penalty in every case 

where I could. 

The questionnaire did not frame the jurors’ choice as one between life or death, but 

instead as among four different death-focused options. Through such questions, the 

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jurors were conditioned from the outset to view death as the default sentence,149

with no objection from trial counsel. 

The mitigation-phase instructions similarly primed jurors to favor a death 

sentence. The jurors received instructions at the beginning of the mitigation phase 

and at the end, shortly before they began deliberations. (Tr. Apr. 24, 2006 at 4–10; 

Tr. May 22, 2006 at 14–26.) The instructions made the desired end point clear from 

the start, declaring that this was a “death penalty case[.]” (Tr. Apr. 24, 2006 at 7.) 

The instructions stated that the jurors needed to decide “whether to oppose the death 

penalty” and that “each juror may vote for death or against,” again framing a 

decision for a life sentence as a contrary or aberrant position. (Tr. Apr. 24, 2006 at 

8–9 (emphasis added); Tr. May 22, 2006 at 23.) Further, the instructions framed the 

question for the jurors as “whether to impose the death penalty” without providing 

a sentence of life as the other, equal choice. (Tr. Apr. 24, 2006 at 9; Tr. May 22, 

2006 at 23.) Life in prison was not presented as an equally appropriate sentence. 

Both the preliminary and final mitigation-phase instructions included the 

following particularly stark statement: “If your verdict is that the Defendant should 

be sentenced to death, the Defendant will be sentenced to death. If your verdict is 

that the Defendant should be sentenced to life, the Defendant will not be sentenced 

to death and the Court will sentence the Defendant to life in prison.” (Tr. Apr. 24, 

2006 at 9–10; Tr. May 22, 2006 at 24.). Again, the instruction insinuated to the jury 

that its duty was to impose death and that, should the jury abdicate that duty, then 

the court would be forced to step in and sentence the defendant. 

In acceding to such instructions, counsel allowed the sentencing jurors to be 

given the impression that they had to act outside of the norm to impose a life 

sentence. As a result, Kiles’s sentencing jurors were primed to impose death, 

instead of making an independent and individualized decision based on the facts of 

 

149 Given the importance of primacy in learning, this emphasis on the death penalty 

when the jurors were first introduced to the case would have had a profound effect. 

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his case. See Hurst, 136 S. Ct. at 624; see also Ring, 536 U.S. at 597. Counsel’s 

failure to object to these instructions undermined Kiles’s constitutional right to a 

reliable, individualized sentencing determination made by an unbiased jury; this 

failure amounts to deficient performance. Moreover, this failure prejudiced Kiles: 

had counsel objected to the instructions, there is a reasonable probability that the 

court would have reworded the instructions and that, in turn, at least one juror would 

have voted differently. Accordingly, Kiles’s counsel were constitutionally 

ineffective with respect to the mitigation-phase instructions, and Kiles is entitled to 

sentencing relief. 

H. The cumulative effect of trial counsel’s many instances of deficient 

performance deprived Kiles of his right to counsel at the 

mitigation phase and resulted in an unreliable sentencing 

proceeding. 

While each instance of trial counsel’s deficient performance prejudiced 

Kiles, the cumulative effect of those unreasonable missteps was particularly 

pronounced. 

Even in a case in which error examined in isolation is not sufficiently 

prejudicial to warrant reversal, the cumulative effect of multiple errors can still 

require relief. See Alcala v. Woodford, 334 F.3d 862, 882–83 (9th Cir. 2003) 

(affirming grant of habeas relief on basis of cumulative effect of multiple errors by 

counsel); Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) (stating that the 

cumulative effect of errors may be so prejudicial as to require reversal); Harris By 

& Through Ramseyer v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995) (holding that the 

cumulative impact of numerous deficiencies in defense counsel’s performance was 

prejudicial). Even if this Court finds that no single error caused prejudice, it 

nonetheless should apply cumulative error principles to grant relief. See Boyde v. 

Brown, 404 F.3d 1159, 1176 (9th Cir. 2005). 

Counsel committed multiple errors during Kiles’s mitigation proceeding. 

Even if this Court were to find that no single error merits relief, the cumulative 

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effect of all the errors is so prejudicial that Kiles is entitled to relief on that basis. 

To the extent the post-conviction court declined to find cumulative error 

because the Arizona state courts do not recognize the doctrine of cumulative 

prejudice, its decision contravenes Strickland. See 28 U.S.C. § 2254(d); see also

White, 895 F.3d at 671 (holding that the Arizona post-conviction court erred by 

separately addressing the prejudice arising from separate deficiencies at mitigation 

phase and observing that “[t]he test is whether it is reasonably likely that the result 

of the proceeding would have been different but for counsel’s ‘errors’” (quoting 

Strickland, 466 U.S. at 694)). 

Kiles’s counsel’s failure to object to Kiles being visibly physically restrained 

and to ensure a complete record to protect Kiles’s right to meaningful appellate 

review compounded all of counsel’s errors during the mitigation phase and 

throughout trial. See Claim 3, supra and Claim 16, infra. Counsel’s errors were 

cumulatively so serious that they deprived him of “a trial whose result is reliable.” 

Strickland, 466 U.S. at 687. Had counsel provided effective assistance at the 

mitigation phase and throughout trial, there is a reasonable probability that at least 

one juror would have not have voted to impose death. See Bemore, 788 F.3d at 

1176. This Court should find that, taken together, the multiple unreasonable actions 

and errors of trial counsel warrant relief.

I. The state post-conviction court’s decision that Kiles did not state 

a colorable claim is no bar to this Court’s de novo review of this 

claim. 

The state post-conviction court’s reasoned decision on this claim, with 

respect to counsel’s failures in the mitigation phase of trial, including the failure to 

present brain scans and evidence of intermittent explosive disorder, stated that Kiles 

had shown neither deficient performance nor prejudice. (See ROA 1214 at 2.) 

The state-court merits ruling on this claim is contrary to and/or an 

unreasonable application of clearly established federal law for two distinct reasons. 

See 28 U.S.C. § 2254(d)(1). As noted supra, Claim 3, the only standard the state 

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post-conviction court ever stated with respect to the prejudice prong of an 

ineffectiveness-of-counsel claim was an outcome-determinative standard: whether 

“the outcome would have been different.” (ROA 1214 at 2.) That standard, 

however, is contrary to or an unreasonable application of the prejudice standard in 

Strickland. See, e.g., Thomas v. Clements, 789 F.3d 760, 767–68 (7th Cir. 2015) 

(holding that the state court’s “would have led to a different result” prejudice 

standard was an unreasonable application of Strickland); Martin v. Grosshans, 424 

F.3d 588, 592 (7th Cir. 2005) (holding that the state court’s prejudice inquiry—

whether “the result of the proceeding would have been different”—was contrary to 

Strickland). Moreover, as noted earlier, the state court’s failure to consider the 

cumulative effect of the prejudice from the various failures by trial counsel in the 

mitigation investigation and presentation was likewise an unreasonable application 

of or contrary to clearly established Supreme Court precedent. See, e.g., Strickland, 

466 U.S. at 694–95 (“The defendant must show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. . . . In making this [prejudice] determination, a court hearing 

an ineffectiveness claim must consider the totality of the evidence before the judge 

or jury.”); Williams, 529 U.S. at 397–98; see also, supra, Claim 3. 

In addition, the ruling that there was no showing of deficient performance 

was an unreasonable application of Strickland and Wiggins, which unambiguously 

provide that unreasoned “decisions” based on an unreasonable investigation are 

afforded no deference. See Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. 

The Supreme Court has made clear that a state court must look beyond whether the 

mitigation presented supports a “superficially reasonable mitigation theory” and to 

the underlying investigation. Sears, 561 U.S. at 953–54. 

To the extent that the state court made a determination of fact on this front, 

that too was unreasonable. See 28 U.S.C. § 2254(d)(2); see also, e.g., Taylor v. 

Maddox, 366 F.3d 992, 999–1001 (9th Cir. 2004) (discussing ways in which 

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§ 2254(d)(2) can be satisfied). As the state-court record makes clear, counsel failed 

to investigate obvious lines of mitigation; failed to hire crucial experts who could 

investigate such lines of mitigation, including brain damage; failed to provide their 

own experts with critical information, failed to investigate the State’s rebuttal 

experts and failed to develop a theory of mitigation that would persuade any jury 

that leniency was warranted. In light of this failure to investigate, counsel’s choice 

to present no lay witnesses who knew Kiles well, to present no brain-damage expert 

or evidence of brain damage, to present no trauma expert or anyone who could 

properly explain and contextualize Kiles’s traumatic upbringing, and to present a 

mitigation theory that centered on Kiles as a violent individual, among other errors, 

were necessarily deficient. 

The finding of no prejudice was likewise unreasonable, both because the state 

court used the improper legal standard, as described above, but also because the 

state court—to the extent it made a factual finding—relied on an unreasonable 

determination under § 2254(d)(2). See Taylor, 366 F.3d at 1001 (“[W]here the state 

courts plainly misapprehend or misstate the record in making their findings, and the 

misapprehension goes to a material factual issue that is central to petitioner’s claim, 

that misapprehension can fatally undermine the fact-finding process, rendering the 

resulting factual finding unreasonable.”). Here, the state post-conviction court 

ignored the prejudice demonstrated by the totality of persuasive mitigation evidence 

that trial counsel could have presented had they conducted an adequate 

investigation and been able to present and explain the significance of all relevant 

mitigating evidence. The finding was thus unreasonable within the meaning of 

§ 2254(d)(2). See Williams, 529 U.S. at 397–398; Wiggins, 539 U.S. at 536.

Because Kiles has satisfied § 2254(d), this Court’s analysis is

“unconstrained” by AEDPA deference.150 See Williams, 529 U.S. at 405–06. 

 

150Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

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J. Conclusion 

For the reasons stated above, Kiles’s counsel provided ineffective assistance 

at Kiles’s mitigation phase, thereby prejudicing Kiles. The state-court decision is 

no bar to this Court’s de novo review of this claim, and Kiles is entitled to relief. 

Claim Seven 

The trial court’s numerous errors during the guilt phase of trial 

violated Kiles’s constitutional rights. 

The trial court committed numerous errors during Kiles’s guilt phase, 

infringing upon his rights under the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

A. The trial court erred by not appointing qualified, un-conflicted 

counsel, violating Kiles’s rights under the Sixth and Fourteenth 

Amendments. 

 This claim was presented in Kiles’s state post-conviction relief petition. 

(ROA 1189 at 10–18, 23–30.) The state post-conviction court denied the claim on 

the merits. (ROA 1214 at 1). For the reasons below, the state court’s denial of this 

claim constituted an unreasonable application of clearly established federal law, 28 

U.S.C. § 2254(d)(1), and an unreasonable determination of the facts, id.

§ 2254(d)(2). Accordingly, § 2254(d) places no limitation on relief, and this Court 

may review the exhausted claims de novo. 

1. The trial court erred by failing to conduct an appropriate 

inquiry into counsel’s conflicts. 

Kiles petitioned the trial court for appointment of un-conflicted counsel on 

numerous occasions. (See ROA 392 at 5; ROA 407 at 4; ROA 413 at 1–2; ROA 

519 at 4; ROA 522 at 1–3; ROA 585 at 7.) There were two specific conflicts which 

the trial court was constitutionally required to address to ensure the Sixth 

 

See Martinez, 566 U.S. at 9; Strickland, 466 U.S. at 688, 694. 

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Amendment right to counsel. See Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). The 

first was the irrevocably fractured relationship between Kiles and Greg Clark, who 

was Kiles’s lead counsel. The second was the conflict of interest with co-counsel, 

Treasure VanDreumel.151 Clark hired VanDreumel to defend Clark’s conduct as an 

attorney before the Arizona State Bar Association (“Bar”). (ROA 585 at 7.) At the 

same time, VanDreumel was representing Kiles while he was actively litigating 

Clark’s ineffective assistance and conduct as an attorney in front of the Arizona 

Supreme Court and the Bar. (Tr. Jan. 7, 2002 at 68–69.) See Claim 1, supra. The 

court failed to address either, and as a result Kiles was deprived of his right to have 

effective assistance of counsel in violation of the Sixth Amendment. 

 Despite Kiles “alleg[ing] an actual conflict and adverse effect in sufficient 

and not implausible detail,” the court failed to conduct more than perfunctory, 

superficial hearings on the truth of the allegations. United States v. Hearst, 638 F.2d 

1190, 1195 (9th Cir. 1980). The first time Kiles requested new counsel, the court 

accused Kiles of trying to inject error into the proceedings.152 (Tr. Jan. 22, 1999 at 

14.) In another hearing, Kiles informed the court, “[i]f you keep Mr. Clark on my 

case, I don’t know how he is going to be able to defend me because there is some 

things I need to tell my attorney, but I will not tell him.” (Tr. Aug. 6, 1999 at 17.) 

 

151 There were two other issues which Kiles alerted the court to regarding counsel: 

(1) Clark was unqualified to be appointed as capital counsel under the Arizona 

Rules of Criminal Procedure, and (2) the contract structure under which both his 

attorneys were paid created a conflict of interest. See Claim 1, supra. As to the first, 

the trial court held a hearing about Clark’s qualifications, but deemed him qualified 

partly based on misrepresentations by Clark. (Tr. Oct. 7, 1998 at 21.) And as to the 

second, the court decided that claim was best left for collateral review to determine 

whether a “plausible alternative defense strategy or tactic might have been pursued 

but was not” due to the attorneys’ financial interests. United States v. Wells, 394 

F.3d 725, 733 (9th Cir. 2005). 

152 Inexplicably, the court also believed that because Kiles was facing capital 

punishment, his attorney did not need to meet with him or have substantive 

communication with him. “Well, if this were a simple burglary case, I would have 

expected Mr. Clark to be down and have a heart-to-heart conversation with Mr. 

Kiles.” (Tr. Jan. 22, 1999 at 10.) 

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The court failed to recognize the irreparable conflict between Kiles and Clark, and 

instead held that Kiles to that point had not yet received ineffective assistance of 

counsel. (Tr. Aug. 6, 1999 at 47.) 

 Often the court would choose to do whatever was most expedient rather than 

consider Kiles’s pleas for his right to counsel. For instance, when the conflict was 

first raised, the court said, “I think if I appoint new counsel, we are going to be no 

further ahead. In fact, we will be—in terms of time—we will be that much farther 

behind.” (Tr. Jan. 22, 1999 at 10.) This was nearly 18 months before Kiles’s trial 

began. And when Kiles alerted the court of the conflict under which VanDreumel 

represented him, the court, without any reasoning, denied the request for unconflicted counsel. The court was clearly leaving the issue for appeal, as all he 

stated as a basis for his denial was, “[W]e are making a record.” (Tr. Jan. 7, 2002 

at 70.) This was not a determination on the merits, as constitutionally required. 

Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000). 

 Therefore, the superficial hearings and cursory dismissals of Kiles’s repeated 

pleas fell well short of the trial court’s duty to ensure Kiles’s right to effective 

representation. 

2. The trial court erred by failing to appoint qualified, 

un-conflicted counsel. 

“[A] court confronted with and alerted to possible conflicts of interest must 

take adequate steps to ascertain whether the conflicts warrant separate counsel.” 

Wheat v. United States, 486 U.S. 153, 160 (1988); see also Holloway v. Arkansas, 

435 U.S. 475, 483–84 (1978); Cuyler, 446 U.S. at 347. 

 Under the Sixth Amendment’s right to counsel, “a state trial court has no 

discretion to ignore an indigent defendant’s timely motion to relieve an appointed 

attorney.” Schell, 218 F.3d at 1025. Where there is a conflict, generally a court may 

not resort to a concern about a delay in the proceedings in denying a request for 

appointment of un-conflicted counsel. See United States v. Moore, 159 F.3d 1154, 

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1161 (9th Cir. 1998) (holding that if a request for un-conflicted counsel was not on 

the eve of trial, a court may not dismiss such a request on the basis of meeting a 

trial schedule or because to appoint new counsel would require a continuance). 

 The trial court here was continually “confronted with and alerted to possible 

conflicts of interest.” Wheat, 486 U.S. at 160. Kiles informed the court explicitly in 

pro per motions and at hearings that he had an irreparably fractured relationship 

with lead counsel. (See, e.g., ROA 413 at 1–2; Tr. Aug. 6, 1999 at 12–15.) Kiles 

alerted the court that Clark had hired VanDreumel to represent Clark in Bar 

proceedings, creating a conflict between VanDreumel’s loyalties to both clients. 

(Tr. Jan. 7, 2002 at 68–69.) Because Kiles’s motions and statements on the conflicts 

made “a strong showing,” and the “matter was called to the attention of the trial 

court well before the date of trial,” the “denial of appellant’s motion for a change 

of appointed counsel was error.” United States v. Williams, 594 F.2d 1258, 1261 

(9th Cir. 1979). 

 “[T]o compel one charged with [a] grievous crime to undergo a trial with the 

assistance of an attorney with whom he has become embroiled in irreconcilable 

conflict is to deprive him of the effective assistance of any counsel whatsoever.” 

Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970). The trial court deprived 

Kiles of his Sixth Amendment right to counsel, leading to a “substantial and 

injurious effect” on his conviction. See Brecht v. Abrahamson, 507 U.S. 619, 623 

(1993). As such, Kiles’s habeas relief must be granted. 

B. The trial court denied Kiles a fair trial by denying his motion for 

a change of venue. 

 Kiles raised this claim in his direct appeal. (DA2 Dkt. 86 at 85–90.) The state 

court denied the claim. See State v. Kiles, 213 P.3d 174, 184–85 (Ariz. 2009). The 

state court’s determination constituted an unreasonable application of clearly 

established federal law, 28 U.S.C. § 2254(d)(1), and an unreasonable determination 

of the facts, id. § 2254(d)(2). Therefore the strictures of § 2254(d) do not apply and 

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this Court can review the exhausted claims de novo. 

1. Kiles’s trial was marked by pervasive, prejudicial media 

coverage. 

“The requirement that a jury’s verdict must be based upon the evidence 

developed at the trial goes to the fundamental integrity of all that is embraced in the 

constitutional concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 472 

(1965) (internal quotation marks omitted). Given the rampant, negative publicity 

Kiles and his case had received in Yuma, Kiles’s defense counsel submitted a 

pretrial motion for a change of venue. Defense counsel argued pretrial publicity had 

the probable effect of precluding a trial of fair and impartial jurors. (Tr. Apr. 11, 

2000 at 10.) 

 At argument on the motion, defense counsel stated, “Since the inception of 

this case there’s been two motions for change of venue. Both times it was reported 

in the press, and not only was it reported in the press, but the comments made by 

defense counsel as to why venue should be changed was reported.” (Tr. Apr. 11, 

2000 at 7.) In other words, because of how extensively the press was covering the 

proceedings, counsel’s complaints about what the press were reporting were then 

re-reported in the press, exacerbating the very problem counsel hoped to proscribe. 

 The State told the court, “I really don’t care where we try this case” (Tr. Apr. 

11, 2000 at 29), but believed the motion for change of venue was premature because 

there had not yet been any voir dire. (Tr. Apr. 11, 2000 at 29.) 

 The court denied the motion, in part because the judge stated if he had not 

been involved, he personally “would really have remembered very little about this 

case.” (Tr. Apr. 11, 2000 at 33–34.) And the court did acknowledge that the press 

coverage had been prejudicial against Kiles: “You kind of have to trust the press to 

give a balanced account. I would hope from this point forward the press does give 

a balanced account and that their news accounts would not seem to have Mr. Kiles 

convicted before the trial even starts.” (Tr. Apr. 11, 2000 at 34.) Still, the court 

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agreed to file the change-of-venue motions under seal, as they would be reported 

on and further prejudice Kiles. (Tr. Apr. 11, 2000 at 35–36.) 

 Upon that denial, defense counsel filed a petition for special action with the 

Arizona Supreme Court, arguing that the media coverage was so pervasive and 

negative to Kiles he could not receive a fair trial in Yuma. (Case No. M-00-0006, 

Pet. For Special Action, Mar. 10, 2000.) The Arizona Supreme Court declined to 

accept jurisdiction over the complaint. (ROA 441 at 1.) 

2. Clearly established federal law required a change of venue 

to ensure Kiles’s due process rights. 

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a 

panel of impartial, indifferent jurors” whose decisions “must be based upon the 

evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal 

citation and quotation marks omitted). While total ignorance of the facts and issues 

is not required, a court “cannot foreclose inquiry as to whether, in a given case, the 

application of that rule works a deprivation of the prisoner’s life or liberty without 

due process of law.” Id. at 723 (quoting Lisenba v. People of State of California, 

314 U.S. 219, 236 (1941)). Where, as in Kiles’s case, the “build-up of prejudice is 

clear and convincing,” the trial court erred in denying a motion for change of venue. 

Irvin, 366 U.S. at 725. 

 In Irvin, the facts are remarkably similar to those in Kiles’s case. In that case, 

news stories revealed the details of the petitioner’s prior crimes and called him a 

“confessed slayer.” Id. at 725–26. Specifically, the newspaper articles in Irvin

“reported petitioner’s offer to plead guilty if promised a 99-year sentence, but also 

the determination, on the other hand, of the prosecutor to secure the death penalty.” 

Id. at 725–726. No matter jurors’ statements at voir dire, “influence that lurks in an 

opinion once formed is so persistent that it unconsciously fights detachment from 

the mental processes of the average man.” Id. at 727–28 (internal citations 

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omitted).153 

 A court has committed error in failing to grant a motion for change of venue 

if there was “reasonable likelihood that prejudicial news prior to trial . . . 

prevent[ed] a fair trial.” Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). Prejudice 

is presumed where the pretrial publicity is “massive,” “pervasive,” and “virulent.” 

Id. at 335, 354. When determining whether a change of venue is warranted, courts 

must analyze such factors as the timing of the media, the degree of exposure to the 

investigation, and whether the media is primarily factual or prejudicial. See Casey 

v. Moore, 383 F.3d 896, 907–08 (9th Cir. 2004); Ainsworth v. Calderon, 138 F.3d 

787, 795 (9th Cir. 1998), as amended, 152 F.3d 1223 (9th Cir. 1998). 

3. As the media attention prevented Kiles from receiving a fair 

trial, the trial court erred in denying the motion for change 

of venue. 

 The trial court erred in not granting Kiles’s motion for change of venue, as 

the pervasive, negative, prejudicial media denied his constitutional right to trial 

before a fair and unbiased jury. 

 Here, the media reporting on Kiles’s case was pervasive enough that motions 

had to be filed under seal. Defense counsel reported that the press was reporting on 

motions as she filed them. (Tr. Apr. 11, 2000 at 8.) There was no break in time 

between reporting and Kiles’s trial, and he was tried before a biased jury as a result. 

 In addition, the reporting was not factual but highly prejudicial. One article 

printed in the Yuma Sun before Kiles’s second trial commenced declared, “Judge 

Denies Killer Use of a Pen.” (Tr. Apr. 11, 2000 at 25–26; Case No. CV-00-0143, 

 

153 As Justice Frankfurter wrote regarding the inherent tensions in deciding such 

issues, “One of the rightful boasts of Western civilization is that the State has the 

burden of establishing guilt solely on the basis of evidence produced in court and 

under circumstances assuring an accused all the safeguards of a fair procedure. . . . 

The Court has not yet decided that, while convictions must be reversed and 

miscarriages of justice result because the minds of jurors or potential jurors were 

poisoned, the poisoner is constitutionally protected in plying his trade.” Irvin, 366 

U.S. at 729–30 (Frankfurter, J. concurring). 

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Pet. For Special Action, May 5, 2000 at 44.) Other headlines included, “Retrial for 

Convicted Murderer in Limbo” (Case No. CV-00-0143, Pet. For Special Action, 

May 5, 2000 at 37) and “Convicted Killer’s Attorney Gets More Time to Appeal.” 

(Case No. CV-00-0143, Pet. For Special Action, May 5, 2000 at 43.) As in Irvin, 

366 U.S. at 725–26, news articles in Yuma before Kiles’s trial in 2000 consistently 

reported that Kiles had been convicted before “based on overwhelming evidence of 

premeditation” and that he had confessed to multiple people. (Case No. CV-00-

0143, Pet. For Special Action, May 5, 2000 at 36; Tr. Apr. 11, 2000 at 16.) And as 

in Irvin, news articles also published statements from Kiles’s prior trial and 

appellate attorneys that Kiles was not innocent and would have pleaded guilty but 

for the State seeking the death penalty. (Tr. Apr. 11, 2000 at 13–15.) 

 Moreover, the press was reporting inflammatory details that jurors would 

never have heard in the courtroom. For instance, the newspapers reported in detail 

about Kiles’s prior violent felony—details that were so similar to the facts of the 

current case that they “could never come inside of a criminal trial.” (Tr. Apr. 11, 

2000 at 11.) 

 Finally, using materials from the first trial, newspaper articles in Yuma 

opined on the testimony and credibility of witnesses at the second trial, including 

Kiles himself. (Tr. Apr. 11, 2000 at 20–21.) Given the ineffective assistance of 

counsel that Kiles received at his first trial, “there was plenty of testimony and 

information that came in that was totally excludable from any other criminal case.” 

(Tr. Apr. 11, 2000 at 26.) As a result, the press reporting was much more damaging 

than in the majority of cases covered by the media, and as such, there is a reasonable 

likelihood Kiles failed to receive a fair trial in Yuma. 

 Because the newspaper reporting of Kiles’s case was “massive,” “pervasive,” 

and “virulent,” there was a “reasonable likelihood that prejudicial news prior to trial 

. . . prevent[ed] a fair trial.” Sheppard, 384 U.S. at 335, 363. As such, the trial court 

was in error and violated Kiles’s Fifth, Sixth, Eighth, and Fourteenth Amendment 

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rights. See Brecht, 507 U.S. at 623. Relief must be granted. 

C. The trial court erred by not dismissing the venire after a highly 

prejudicial statement poisoned the jury pool. 

Kiles did not present this claim in state court. Kiles can overcome any default 

by showing cause and prejudice, as the ineffective assistance of Kiles’s state postconviction counsel in failing to raise this claim constitutes cause for the default and 

resulted in prejudice to Kiles. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984). Kiles will demonstrate at an 

evidentiary hearing that state post-conviction counsel fell below the standards of 

minimally competent capital post-conviction attorneys when they failed to raise this 

meritorious claim. 

Because this claim has not been adjudicated by the Arizona state courts, the 

limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review, and the Court may consider the merits of the claim de novo. 

1. A prospective juror disclosed highly prejudicial information 

before the venire. 

The voir dire for Kiles’s second trial was conducted on July 7, 2000. Before 

any juror questionnaires had been given out or counsel had an opportunity to ask 

questions, the court began by asking the entire venire, “Have any of you ever seen 

or heard or read anything about this case or have any of you ever heard anyone 

express an opinion about this case?” (Tr. July 7, 2000 at 39.) The question itself 

was anodyne, but invited prospective jurors to introduce extraneous information 

about the case to the entire venire if they offered details beyond a yes or no answer. 

 At the court’s instigation, one person did just that. One venire member who 

raised her hand told the judge that Shemaeah Gunnel’s uncle worked with her 

husband and was a family friend when the crime occurred. Rather than speak to the 

potential juror individually, the court asked follow-up questions before the entire 

venire, inviting details. The court asked, “Did you talk to the—talk about the case 

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either to him or talk to your husband and he talked about things. . . .” The juror 

answered that the uncle had told them about the crime, and told them about the 

service held for the child. The court continued, and asked a question that would 

naturally elicit prejudicial details: 

THE COURT: Do you feel that you perhaps might have 

some inside information that other people don't? 

JUROR: No. 

THE COURT: Okay. 

JUROR: I just don’t -- when they found the defendant 

guilty I was happy, you know. 

(Tr. July 7, 2000 at 45–46.) 

 Defense counsel immediately requested that questioning stop being 

conducted in this manner and moved to strike the venire. (Tr. July 7, 2000 at 46.) 

Counsel correctly pointed out that a curative instruction would only have 

exacerbated the problem, drawing more attention to the juror’s statements about 

Kiles’s prior conviction. (Tr. July 7, 2000 at 47.) The judge denied the motion, 

saying that it was premature, as the court and counsel could continue asking 

individual jurors generally about media exposure to Kiles’s case. It is worth noting 

that the judge failed to even identify the problem, as the prejudicial information 

introduced to the venire was not from the media, but rather from a prospective juror 

who stated that she was happy when she learned of Kiles’s previous conviction. 

 Despite this being a capital case, the court failed to take even basic 

precautions to ensure Kiles received his right to a fair and impartial jury. 

2. The trial court erred by failing to grant the motion to 

dismiss the venire. 

“The requirement that a jury’s verdict must be based upon the evidence 

developed at the trial goes to the fundamental integrity of all that is embraced in the 

constitutional concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 472 

(1965) (internal quotation marks omitted). The integrity of the jury, especially in a 

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capital case, is paramount, and “any ground of suspicion that the administration of 

justice has been interfered with” cannot be tolerated. Mattox v. United States, 146 

U.S. 140, 149 (1892), superseded by rule as stated in Pena-Rodriguez v. Colorado, 

137 S. Ct. 855 (2017). Additionally, “[i]t is vital in capital cases that the jury should 

pass upon the case free from external causes tending to disturb the exercise of 

deliberate and unbiased judgment.” Id.

 Here a juror introduced highly inflammatory, prejudicial information to the 

entire venire that the court and both parties had “gone to extraordinary lengths” to 

keep out of the proceedings. (Tr. July 7, 2000 at 46.) The court could not have 

conducted an inquiry into whether this extraneous information biased jurors without 

further reference to that prejudicial information. Though constitutional rights 

should never be subject to scheduling concerns, as this information was introduced 

on the first day of venire, the court could easily have dismissed the pool of 

prospective jurors and started without a biased jury pool. 

 To ensure due process, “the right to jury trial guarantees to the criminally 

accused a fair trial by a panel of impartial, indifferent jurors” whose decisions “must 

be based upon the evidence developed at trial.” Irvin, 366 U.S. at 722 (internal 

quotation marks and citations omitted). Here, because the court denied the motion 

to strike the venire, Kiles was denied his constitutional right to a fair and impartial 

jury. Moreover, as noted by defense counsel, a number of jurors most certainly 

overheard that prejudicial, extraneous information introduced. (Tr. July 7, 2000 at 

46.) If even one juror’s deliberations were affected, the defendant is denied the 

constitutional right to an impartial jury. Mach v. Stewart, 137 F.3d 630, 633 (9th 

Cir. 1997). The trial court’s denial of the motion to strike the venire violated Kiles’s 

due process rights under the Fourteenth Amendment and had a “substantial and 

injurious effect” on his conviction. See Brecht, 507 U.S. at 623. 

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D. The trial court’s admission of an excessively gruesome photograph 

during Kiles’s trial resulted in the denial of a fair trial and due 

process. 

The admission of a photograph of LeCresha’s decomposed body (see 2000 

Trial Ex. 72) was raised by Kiles’s appellate counsel as both a guilt-phase and 

penalty-phase trial-court error. (DA2 Dkt. 86 at 56–66.) The Arizona Supreme 

Court held that because the penalty-phase jury did not sentence Kiles to death for 

the killing of the children, Kiles suffered no prejudice. See Kiles, 213 P.3d at 183. 

Where, as in Kiles’s case, there were two different juries for conviction and 

sentence, the court’s holding was unreasonable. It failed to recognize that regardless 

of the ultimate sentence imposed, the photograph was so unduly prejudicial that it 

rendered the guilt-phase proceeding fundamentally unfair. Therefore, the state 

court’s denial of this claim was an unreasonable application of or contrary to clearly 

established federal law, see 28 U.S.C. § 2254(d)(1), and rested on an unreasonable 

determination of the facts, id. § 2254(d)(2). Accordingly, the strictures of § 2254(d) 

do not apply to this claim, and this Court may review the merits of this claim de 

novo. 

1. The trial court failed to exclude an irrelevant and gruesome 

autopsy photograph during the guilt-phase proceedings. 

During questioning of the medical examiner, the State introduced Exhibit 72, 

a gruesome photograph of the body of LeCresha Kirklin, to the jury. (Tr. July 13, 

2000 at 101–03; 2000 Trial Ex. 72.) LeCresha’s body had been discovered in a 

Mexican canal two weeks after her death. The photograph was illustrative not of 

her injuries from the crime but of the grisly result of decomposition from having 

been in the water for an extended period of time. The photograph showed “skin 

slippage,” skin discoloration, soft tissue loss, and damage from crabs and other 

aquatic animals feeding on the body. (Tr. July 13, 2000 at 102–03.) 

 Notably, because of the damage to the body, the photograph could not 

demonstrate the wounds which caused LeCresha’s death. While the photograph 

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showed “evidence of skin laceration” which may have been caused during the 

assault, the medical pathologist stated that the “hole in the skull where the soft tissue 

has been eroded” was “all probably due—part of it—due to immersion” in the 

water. (Tr. July 13, 2000 at 103.) The photograph showed no evidence of an assault 

otherwise. The photograph served no evidentiary purpose, as it did not illustrate or 

support the medical examiner’s testimony about LeCresha’s cause of death. 

 The defense asked no questions about LeCresha’s autopsy or the photo, as 

there were no material issues of fact for which the photograph had any evidentiary 

value. (Tr. July 13, 2000 at 103–07.) 

 As there was no probative value to the photograph except to inflame and 

appall the jury, the court’s failure to strike the photograph was a violation of Kiles’s 

due process rights. 

2. The trial court’s admission of an excessively gruesome 

photograph to the jury was violative of due process and 

undermined the fairness of the proceedings. 

The introduction of gruesome photographs of victims in capital trials raises 

issues of constitutional dimension. In Zant v. Stephens, the Supreme Court held that 

the jury should not be allowed to consider evidence that is “totally irrelevant to the 

sentencing process” and fails to focus on “the character of the individual and the 

circumstances of the crime.” 462 U.S. 862, 879, 885 (1983). In addition, if the jury 

is permitted to consider evidence that is so unduly prejudicial that it renders the trial 

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment has 

been violated. See Romano v. Oklahoma, 512 U.S. 1, 12 (1994); Darden v. 

Wainwright, 477 U.S. 168, 179-83 (1986); Donnelly v. DeChristoforo, 416 U.S. 

637, 643 (1974). 

 Here, the admission of the photograph undermined the fairness of the trial 

and “so infected the sentencing proceeding with unfairness as to render the jury’s 

imposition of the death penalty a denial of due process.” Romano, 512 U.S. at 12; 

Bruton v. United States, 391 U.S. 123, 131 n.6 (1968) (“An important element of a 

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fair trial is that a jury consider only relevant and competent evidence bearing on the 

issue of guilt or innocence.”). The medical examiner’s testimony regarding the 

victims’ injuries and causes of death was uncontroverted by the defense. (Tr. July 

13, 2000 at 103–07.) The medical examiner gave a cause of death without reference 

to the photograph. (Tr. July 13, 2000 at 101–03). The presentation of the gruesome 

photographs added nothing probative to the evidence, especially as the photograph 

was not illustrative of the injuries suffered, but rather of the state of the body after 

having been in the water for two weeks. 

 The admission of Exhibit 72 at trial only served to incite the passions of the 

jurors. The highly prejudicial effect of this evidence easily outweighed any 

potential minimal probative value, and the introduction of the photograph 

undermined the fairness of the trial and sentencing proceeding. It had a “substantial 

and injurious effect” on Kiles’s conviction. See Brecht, 507 U.S. at 623. The trial 

court abused its discretion by allowing the photo to be admitted by the jury and 

violated Kiles’s right to due process under the Fourteenth Amendment. See 

Romano, 512 U.S. at 12; Bruton, 391 U.S. at 131 n.6. 

E. The trial court declined to give the jury instructions to which Kiles 

was constitutionally entitled. 

At Kiles’s guilt phase, despite the fact that Kiles had been charged with 

premeditated murder, the trial court declined to instruct the jury that it could 

consider an intoxication defense. The court likewise declined to properly instruct 

the jury on premeditation and on reasonable doubt. The court’s ineffectual jury 

instructions denied Kiles his rights to a fair trial, to a complete defense, and to due 

process under the Fifth, Sixth, and Fourteenth Amendments to the U.S. 

Constitution. 

Except as noted below, Kiles presented this claim on direct appeal. (DA2 

Dkt. 86 at 42–56.) The Arizona Supreme Court’s denial of this claim was contrary 

to or involved an unreasonable application of the clearly established federal law 

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discussed below, see 28 U.S.C. § 2254(d)(1); it further rested on an unreasonable 

determination of fact, see id. § 2254(d)(2). 

1. The trial court erred in failing to instruct the jury that 

premeditation requires actual reflection. 

Despite Arizona law explaining that premeditation requires actual reflection, 

the trial court declined to give an instruction properly defining premeditation. The 

court instructed the jury as follows: 

Premeditation means the defendant acts with the 

knowledge that he will kill another human being when such 

intention or knowledge proceeds [sic] the killing by a 

length of time to permit reflection. An act is not done with 

premeditation if there is any instant – if it is the instant 

effect of a sudden quarrel or heat of passion. 

(Tr. July 19, 2000 at 92–93.) Without additional clarification, the jury could not tell 

whether premeditation required actual reflection or simply time to premeditate. 

Further, the trial court’s definition amounted to telling the jury that premeditation 

equaled knowledge plus “a length of time to permit reflection.” In other words, 

premeditation equaled knowledge plus time. But then the prosecutor argued that 

premeditation “can be instantaneous. I mean that can be so fast.” (Tr. July 19, 2000 

at 35.) In essence, the court’s instruction, especially as eroded by the State’s 

argument, informed the jury that the State did not need to prove Kiles actually 

reflected for the jury to convict him of premeditated murder. 

Under Arizona law, however, premeditation required actual reflection. State 

v. Thompson, 65 P.3d 420, 428 (Ariz. 2003) (explaining that the jury must find 

“beyond a reasonable doubt that the defendant actually reflected”); see also State 

v. Dann, 74 P.3d 231, 239 (Ariz. 2003) (“[I]f a court’s instruction or a prosecutor’s 

comment to the jury signals that the mere passage of time will suffice to establish 

the element of premeditation, those instructions or comments constitute error.”); 

supra, Claim 3. Because the jury was not so instructed, it did not need to find 

anything more than knowledge and time in order to find Kiles guilty of Gunnel’s 

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premeditated first-degree murder. 

The omission of actual reflection from the jury instructions meant that, 

ultimately, the State was relieved of its burden to prove Kiles guilty of every 

element of first-degree murder. That violated one of the most basic tenets of due 

process: “the Due Process Clause protects the accused against conviction except 

proof beyond a reasonable doubt of every fact necessary to constitute the crime with 

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970); see also Sullivan v. 

Louisiana, 508 U.S. 275, 277–78 (1993). The Arizona Supreme Court decision 

contravened and/or unreasonably applied this Supreme Court precedent and, 

further, relied on an unreasonable determination of fact that the jury instruction 

conveyed that premeditation required reflection. State v. Kiles, 213 P.3d 174, 179–

80 (Ariz. 2009). Premeditation was the only issue in dispute for Gunnel’s death, 

and the defense sought to argue that her killing was not first-degree murder because 

it was not premeditated. (See Tr. July 19, 2000 at 92–93); see also supra, Claim 3. 

Because of the singular importance of premeditation in this case and the 

fundamental nature of the constitutional violation that occurred, the violation had a 

substantial and injurious effect on the verdict. Brecht, 507 U.S. at 623. 

2. The trial court erred in denying Kiles an intoxication 

defense, which he was constitutionally entitled to present. 

Kiles was charged with the knowing premeditated first-degree murder of 

Gunnel. Kiles, 213 P.3d at 181. The State charged Kiles with knowing, instead of 

intentional, murder to take advantage of a workaround in Arizona law: a defendant 

charged with intentional first-degree murder may raise the defense of voluntary 

intoxication under Arizona law, but a defendant charged with knowing first-degree 

murder may not. Id. at 182 (noting that A.R.S. § 13-503 (1989) “unambiguously 

provides that intoxication is a defense only against the culpable mental state of 

intentionally”). Because Kiles was not charged with a crime of intent, the trial court 

declined to instruct the jury that intoxication was a defense to the crime of firstCase 2:17-cv-04092-GMS Document 33 Filed 09/26/18 Page 312 of 500
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degree murder. (See Tr. July 19, 2000 at 86–99.) As a result, the jury had no legal

avenue to consider whether and how Kiles’s intoxication at the time of the crime 

bore upon the element of premeditation. (See, e.g., Tr. July 17, 2000 at 157–58, 

177.) 

The court’s denial of an instruction on an intoxication defense was 

unconstitutional for multiple reasons. First, it resulted from arbitrary State action, 

in violation of Kiles’s due-process and equal-protection rights. Kiles was charged 

with a crime of knowledge solely to vitiate his intoxication defense. Cf. State v. 

Lavers, 814 P.2d 333, 346 (Ariz. 1991) (“Even if the State charged knowingly 

rather than intentionally to preclude the introduction of evidence of defendant’s 

intoxication, we find such a legal strategy acceptable.”). However, in the context of 

premeditated murder, there is no meaningful difference between intentional murder 

and knowing murder. Under Arizona law, “‘[p]remeditation’ is the distinguishing 

feature of first degree murder. Its essence is reflective intent to kill.” State v. Walton, 

650 P.2d 1264, 1271 (Ariz. Ct. App. 1982 (quoting Judge R. Gerber, Criminal Law 

of Arizona at 147 (1978)).154 In such a scheme, allowing a State to discriminate 

against certain comparably situated defendants, who could be charged with either 

knowing or intentional premeditated first-degree murder, based on whether the 

State wants to give the defendant the opportunity to present an intoxication defense 

is both a due-process and an equal-protection violation. Cf. Walton, 650 P.2d at 

1270 (recognizing that “[a] statute which prescribes different degrees of 

punishment for the same acts committed under like circumstances by persons in 

like situations is violative of a person’s right to equal protection of the laws” 

 

154 This is in part because the definition of premeditated knowing murder, as given 

to Kiles’s jury and as discussed above, makes little sense and effectively stripped 

“premeditation” of any meaning. Even the standard legal meaning of premeditation 

incorporates intent: premeditation is defined as the “[c]onscious consideration and 

planning that precedes an act.” Black’s Law Dictionary (10th ed. 2014). 

“[P]lanning” necessarily involves intent. 

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(alteration in original) (quoting People v. Calvaresi, 534 P.2d 316, 318 (Colo. 

1975)). 

Second, the denial of the intoxication defense infringed on Kiles’s right to 

present a complete defense. “Whether rooted directly in the Due Process Clause of 

the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses 

of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a 

meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 

U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984) 

(citations omitted); see also Simmons v. South Carolina, 512 U.S. 154, 175 (1994) 

(O’Connor, J., concurring) (“[O]ne of the hallmarks of due process in our adversary 

system is the defendant’s ability to meet the State’s case against him.”). While a 

State can limit the availability of an affirmative defense based on a “valid” reason 

without contravening due process, Montana v. Egelhoff, 518 U.S. 37, 53, 56 (1996), 

the State cannot do so arbitrarily. Arizona allows defendants charged with crimes 

of intent access to an intoxication defense; it can have no valid reason to deny other 

defendants the ability to meet the State’s case against them. 

The denial of the opportunity to present a meaningful defense is particularly 

stark in this context because, under Arizona law, the State need not prove actual 

reflection. Thompson, 65 P.3d at 427 (premeditation requires actual reflection, but

the State need not offer direct proof of that actual reflection). When the State need 

not directly prove premeditation, eliminating the intoxication defense drastically 

curtails the opportunity to fairly challenge the element of premeditation, even when 

the defendant was intoxicated to the point that he lacked the capacity to premeditate. 

Especially in these circumstances, the denial of the intoxication defense amounted 

to the denial of Kiles’s right to present a meaningful defense.

Finally, given that the State need not offer direct proof of premeditation, the 

denial of the intoxication defense effectively allowed the jury to find the defendant 

guilty without the State having to prove every element of the crime. See In re 

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Winship, 397 U.S. at 364. 

The court unconstitutionally denied Kiles the right to present an intoxication 

defense, and the Arizona Supreme Court’s contrary decision was an unreasonable 

application of the clearly established federal law cited herein. A legal mechanism 

for consideration of his intoxication evidence would have altered the jury’s analysis 

considerably, and so the court’s error violated Kiles’s rights.155 See Brecht, 507 U.S. 

at 623. 

3. The trial court erred in improperly instructing the jury on 

the definition of “reasonable doubt.” 

Kiles did not present this issue in state court. Kiles alleges he can overcome 

any default by showing cause and prejudice because of the ineffective assistance of 

appellate and state post-conviction counsel. See Martinez, 566 U.S. at 9; Evitts v. 

Lucey, 469 U.S. 387, 396 (1985); Strickland, 466 U.S. at 688, 694. Because this 

claim has not been adjudicated by the Arizona state courts, the limitations on relief 

imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s review, and the Court 

may consider the merits of the claim de novo. 

Contrary to the wishes of trial counsel, the court instructed the jury that 

“[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the 

defendant’s guilt.” (Tr. July 19, 2006 at 87; see also Tr. July 18, 2006 at 27–28 

(counsel requesting a different instruction on the definition of reasonable doubt).) 

The phrase “firmly convinced” reduced the standard of proof the State had to satisfy 

to something less than reasonable doubt; it is akin to “clear and convincing.” See, 

e.g., State v. Perez, 976 P.2d 427, 442 (Haw. Ct. App. 1998), aff’d in part, rev’d in 

part on other grounds, 976 P.2d 379 (Haw. 1999). 

The reasonable-doubt standard “is indispensable to command the respect and 

confidence of the community in applications of the criminal law.” In re Winship, 

 

155 That the court’s instructions on intoxication were unclear only exacerbated the 

problem. See United States v. Bagby, 451 F.2d 920, 927 (9th Cir. 1971). 

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397 U.S. at 364. “It is critical that the moral force of the criminal law not be diluted 

by a standard of proof that leaves people in doubt whether innocent men are being 

condemned.” Id. As there is a reasonable likelihood that the jury interpreted “firmly 

convinced” as a lesser standard of proof than “beyond a reasonable doubt,” the 

court’s instruction violated Kiles’s rights to due process and trial by jury under the 

Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. See id.; see also 

Sullivan, 508 U.S. at 278; Estelle v. McGuire, 504 U.S. 62, 72 (1991). Further, 

given the nature of this constitutional error and the fact that the defense contended 

that the State could not prove issues like premeditation beyond a reasonable doubt, 

the error was not harmless. See Brecht, 507 U.S. at 623. 

F. The trial court unconstitutionally required that Kiles be physically 

restrained at the guilt phase. 

Kiles did not present this claim in state court. Kiles alleges he can overcome 

any default by showing cause and prejudice because of the ineffective assistance of 

appellate and state post-conviction counsel. See Martinez, 566 U.S. at 9; Evitts, 469 

U.S. at 396; Strickland, 466 U.S. at 688, 694. Because this claim has not been 

adjudicated by the Arizona state courts, the limitations on relief imposed by 28 

U.S.C. § 2254(d) do not apply to this Court’s review, and the Court may consider 

the merits of the claim de novo. 

 The trial court abused its discretion by requiring that Kiles be physically 

restrained during the guilt-phase proceeding in violation of Kiles’s rights under the 

Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. As discussed in 

Claims 3 and 5, supra, Kiles had a due-process right to be tried without physical 

restraints absent a compelling justification that those restraints were necessary. 

 “[G]enerally, a criminal defendant has a constitutional right to appear before 

a jury free of shackles.” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir. 2003) 

(quoting Spain v. Rushen, 883 F.2d 712, 716 (9th Cir. 1989)). Absent a 

determination by the trial court that a compelling circumstance justifies their use to 

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maintain courtroom security, and that there is no less restrictive measure to achieve 

that aim, the Constitution prohibits the use of physical restraints during any phase 

of a capital case. See Gonzalez, 341 F.3d at 900. 

 For the duration of his guilt-phase proceedings, Kiles was forced to wear a 

leg brace and ankle shackles. The leg brace would lock up if Kiles moved too 

quickly, forcing him to hold the leg brace in place while he was walking. This 

included walking to the witness stand to testify in front of the jury. Multiple jurors 

saw and/or heard the shackles, or noticed Kiles’s odd gait due to the leg brace. 

 By failing to determine that shackling was necessary before requiring 

restraints, the trial court denied Kiles the right to a fair trial. Juror observance of 

shackling undermined the presumption of innocence to which Kiles was entitled, 

and it denied him an impartial jury. See Illinois v. Allen, 397 U.S. 337, 344–45 

(1970); Estelle v. Williams, 425 U.S. 501, 504–05 (1976) (recognizing shackles as 

a “constant reminder of the accused’s condition . . . [that] may affect a juror’s 

judgment” and are “so likely to be a continuing influence throughout the trial that 

. . . an unacceptable risk is presented of impermissible factors coming into play”); 

see also Deck v. Missouri, 544 U.S. 622, 633 (2005) (noting that shackles imply 

that the court considers the defendant dangerous, which is “nearly always a relevant 

factor in jury decisionmaking” in a capital case). 

 The Supreme Court has “defined shackling as ‘the sort of inherently 

prejudicial practice that . . . should be permitted only where justified by an essential 

state interest specific to each trial.’” Hedlund v. Ryan, 854 F.3d 557, 568 (9th Cir. 

2017) (footnote omitted) (quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 

(1986)). In failing to conduct any inquiry into whether an essential state interest 

justified shackling Kiles, the court violated Kiles’s due process rights and had a 

“substantial and injurious effect” on his conviction. See Brecht, 507 U.S. at 623; 

see also State v. Gomez, 123 P.3d 1131, 1139–42 (Ariz. 2005) (vacating death 

sentence because defendant was shackled at penalty phase without individualized 

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finding of necessity). 

G. The trial court failed to make a complete record of the guilt-phase 

proceeding in violation of Kiles’s constitutional rights. 

Kiles did not present this claim in state court. Kiles alleges he can overcome 

any default by showing cause and prejudice because of the ineffective assistance of 

appellate and state post-conviction counsel. See Martinez, 566 U.S. at 9; Evitts, 469 

U.S. at 396; Strickland, 466 U.S. at 688, 694. Because this claim has not been 

adjudicated by the Arizona state courts, the limitations on relief imposed by 28 

U.S.C. § 2254(d) do not apply to this Court’s review, and the Court may consider 

the merits of the claim de novo. 

 As discussed in Claim 16, infra, a complete record is necessary to protect 

Kiles’s Fourteenth Amendment right to meaningful appellate review. In capital 

cases, where heightened reliability is required, see Woodson v. North Carolina, 428 

U.S. 280, 305 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), the U.S. 

Supreme Court has “emphasized repeatedly the crucial role of meaningful appellate 

review in ensuring that the death penalty is not imposed arbitrarily or irrationally.” 

Parker v. Dugger, 498 U.S. 308, 321 (1991). To ensure that reliability, a defendant 

must be provided “a sufficiently complete record of the trial proceedings,” Draper 

v. Washington, 372 U.S. 487, 500 (1963), in order to have “an adequate opportunity 

to present his claims fairly in the context of the [s]tate’s appellate process.” Ross v. 

Moffitt, 417 U.S. 600, 616 (1974). 

 During the guilt-phase proceeding, the trial court failed to record benchconferences (see, e.g., Tr. July 12, 2000 at 82 (“THE COURT: We are back on the 

record. We talked about several things.”); Tr. July 18, 2000 at 31 (“THE COURT: 

Okay. If you will stick around, we will informally go over the forms of verdict. MS. 

VANDREUMEL: Thank you, Judge.”); conferences on jury instructions (Tr. July 

18, 2000 at 2); discussions on how Kiles’s penalty-phase would proceed after 

Arizona’s sentencing scheme was declared unconstitutional in Ring v. Arizona, 536 

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U.S. 584 (2002) (ROA 584 at 1); and a conference on the failure to give appropriate 

jury instructions resulting in a questionable verdict (Tr. July 20, 2000 at 3). The 

failure to make a record is not harmless; these off-the-record conferences raise 

serious, substantive constitutional issues that required appellate review to ensure 

Kiles was not denied his fundamental rights. See Brecht, 507 U.S. at 623. 

 In Kiles’s case there was not a “‘record of sufficient completeness,’ for 

adequate consideration of the errors assigned.” Draper, 372 U.S. at 497 (quoting 

Coppedge v. United States, 369 U.S. 438, 446 (1962)). As the trial court’s failures 

denied Kiles meaningful appellate review in violation of his due process rights, 

relief must be granted. 

H. The trial court violated Kiles’s right to be free from double 

jeopardy and a reliable sentencing determination. 

Kiles did not present this claim in state court. Kiles alleges he can overcome 

any default by showing cause and prejudice because of the ineffective assistance of 

appellate and state post-conviction counsel. See Martinez, 566 U.S. at 9; Evitts, 469 

U.S. at 396; Strickland, 466 U.S. at 688, 694. Because this claim has not been 

adjudicated by the Arizona state courts, the limitations on relief imposed by 28 

U.S.C. § 2254(d) do not apply to this Court’s review, and the Court may consider 

the merits of the claim de novo. 

 With respect to the children, Kiles was indicted on and charged with six 

counts: two counts of premeditated murder, two counts of child abuse, and two 

counts of felony murder. (ROA 1 at 2.) He was convicted on all six counts. (ROA 

482 at 5–8.) As explained in Claim 11, infra, by allowing the child-abuse 

convictions to stand, the trial court subjected Kiles to double jeopardy. A childabuse charge necessarily merges with premeditated murder where the only child 

abuse alleged is the premeditated murder. As the Arizona Supreme Court explained: 

[T]he child abuse-murder situation is akin to the assaultmurder situation. Although “assault and battery are always 

included in an unlawful homicide, they are not degrees of 

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such offense requiring the court where death results, to 

instruct that the defendant may be found guilty thereof.” 

State v. Styers, 865 P.2d 765, 771 (Ariz. 1993) (quoting State v. Myers, 125 P.2d 

441, 444 (Ariz. 1942)). Notably, Kiles was only charged with a single count against 

Valerie Gunnel—premeditated murder. He was not also charged with her assault. 

(ROA 1 at 2.) 

 Since the child-abuse convictions should be subsumed by the premeditated 

murder convictions for his child victims, Kiles’s separate child abuse convictions 

are a violation of his right to be free from double jeopardy under the Fifth 

Amendment to the U.S. Constitution. Included in that Fifth Amendment right is 

“protect[ion] against multiple punishments for the same offense.” North Carolina 

v. Pearce, 395 U.S. 711, 717 (1969). This is precisely what Kiles was subject to. 

 While the prosecution for both child abuse and premeditated murder was 

itself improper, the trial court erred by not striking the child-abuse convictions upon 

receipt of the jury verdicts. A number of jurors found Kiles guilty of premeditated 

murder and child abuse, thereby convicting Kiles of the same crime twice. The 

defense requested the child abuse charges be vacated, as the Arizona Supreme Court 

had explicitly held that “[t]he first degree murder statute, A.R.S. § 13-1105(A)(l ), 

not the child abuse statute, applies when a person intentionally kills a child victim.” 

Styers, 865 P.2d at 772 (emphasis added). But rather than address the multiple 

convictions on the same offense, the trial court stated that while the defense motion 

raised “interesting issues,” it would not vacate the child-abuse verdicts. (Tr. Dec. 

29, 2000 at 19–20.) 

 As Kiles was subject to double jeopardy, the trial court’s error violated 

Kiles’s Fifth Amendment right and had “a substantial and injurious effect” on the 

reliability of his conviction. See Brecht, 507 U.S. at 623. 

I. The cumulative effect of these trial-court errors prejudiced Kiles. 

The Ninth Circuit recognizes that the cumulative effect of multiple errors 

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may prejudice a defendant, even where no single trial error examined alone does 

so. See Parle v. Runnels, 505 F.3d 922, 934 (9th Cir. 2007) (finding habeas relief 

warranted when combined effect of multiple trial errors resulted in injurious effect 

on jury’s verdict); Alcala v. Woodford, 334 F.3d 862, 894–95 (9th Cir. 2003) 

(affirming grant of habeas relief where multiple errors by court and counsel 

deprived defendant of a fundamentally fair trial); Killian v. Poole, 282 F.3d 1204, 

1211 (9th Cir. 2002) (stating that the cumulative effect of errors may be so 

prejudicial as to require reversal). 

The trial court committed numerous errors during the guilt phase of Kiles’s 

trial. Even if this Court were to find that none of them merits relief alone, the 

cumulative effect of all the errors is so prejudicial that Kiles is also entitled to relief 

on that basis. 

Claim Eight 

The trial court’s numerous errors during the penalty phase of trial 

violated Kiles’s constitutional rights. 

The trial court committed numerous errors during Kiles’s penalty phase, 

infringing upon his rights under the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Except as noted below, Kiles did not present this claim in state court. Kiles 

alleges that any procedural bar is not adequate or independent and/or that imposing 

default would be a miscarriage of justice. Alternatively, Kiles alleges he can 

overcome any default by showing cause and prejudice, including the ineffective 

assistance of state counsel. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland 

v. Washington, 466 U.S. 668 (1984). Because this claim has not been adjudicated 

by the Arizona state courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) 

do not apply to this Court’s review, and the Court may consider the merits of the 

claim de novo. 

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A. The trial court unconstitutionally required that Kiles be physically 

restrained at the penalty phase. 

The trial court’s error in requiring that Kiles be physically restrained during 

the penalty phase of trial violated his rights under the Fifth, Sixth and Fourteenth 

Amendments to the U.S. Constitution. 

As discussed in Claims 3, 5, and 7, supra, Kiles had a right under the Due 

Process Clause and the fair-trial guarantee not to be tried wearing physical restraints 

unless there was a compelling reason. “[G]enerally, a criminal defendant has a 

constitutional right to appear before a jury free of shackles.” Gonzalez v. Pliler, 341 

F.3d 897, 900 (9th Cir. 2003) (quoting Spain v. Rushen, 883 F.2d 712, 716 (9th Cir. 

1989)). The use of a stun belt in particular both “raises all of the traditional concerns 

about the imposition of physical restraints” and interferes with “a different set of a 

defendant’s constitutionally guaranteed rights.” Gonzalez, 341 F.3d at 900 (quoting 

United States v. Durham, 287 F.3d 1297, 1305 (11th Cir. 2002)). These include the 

Sixth Amendment right to confer with counsel at trial and to participate in his case. 

Gonzalez, 341 F.3d at 900. Absent a determination by the trial court that a 

compelling circumstance justifies their use to maintain courtroom security, and that 

there is no less restrictive measure to achieve that aim, the Constitution prohibits 

the use of physical restraints during any phase of a capital case. See Gonzalez, 341 

F.3d at 900. 

Throughout penalty-phase proceedings, Kiles was forced to wear a leg brace 

and an electric stun belt around his waist.156 Kiles had to hold the leg brace in place 

 

156 As the Ninth Circuit explained: 

A stun belt is an electronic device that is secured around a prisoner’s waist. Powered 

by nine-volt batteries, the belt is connected to prongs attached to the wearer’s left 

kidney region. When activated remotely, the belt delivers a 50,000-volt, three to 

four milliampere shock lasting eight seconds. Upon activation of the belt, an 

electrical current enters the body near the wearer’s kidneys and travels along blood 

channels and nerve pathways. The shock administered from the activated belt 

‘causes incapacitation in the first few seconds and severe pain during the entire 

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at times when he was walking to prevent it from locking up as he moved. At least 

one juror saw Kiles’s physical restraints—including, once, a belly chain with 

handcuffs—both as Kiles was waiting to enter the courtroom and when he was 

sitting at the defense table. 

The court failed to make the required finding before forcing Kiles to wear 

physical restraints. On February 14, 2006, defense counsel raised the issue of 

restraints at a hearing. (Tr. Feb. 14, 2006 at 41.) The trial judge agreed that he would 

not have Kiles shackled while in the courtroom as he could not “recall any time that 

Mr. Kiles has been a security problem, or risk.” (Tr. Feb. 14, 2006 at 42.) The 

prosecutor agreed that Kiles was not a bad inmate and said he did not see any need 

for shackles. (Tr. Feb. 14, 2006 at 42.) However, the prosecutor argued for leg 

braces, and the parties determined that they needed someone from the Sheriff’s 

Office to be involved. (Tr. Feb. 14, 2006 at 43.) They agreed that, at an alreadyscheduled hearing the following week, they would discuss shackling with someone 

representing the Sheriff’s Office. (Tr. Feb. 14, 2006 at 45.) However, the record on 

appeal contains no minute order nor transcript from a hearing taking place that day. 

Regardless of what transpired at that hearing, Kiles was ultimately restrained 

at trial in a stun belt and leg braces, despite the court and the prosecutor agreeing 

that Kiles did not present a security risk. This violated Kiles’s constitutional 

rights.157 

 

period. Activation may also cause immediate and uncontrolled defecation and 

urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring 

as long as six months to heal. Activation of a stun belt can cause muscular weakness 

for approximately 30–45 minutes and heartbeat irregularities or seizures. 

Accidental activations are not unknown. 

Gonzalez, 341 F.3d at 901 (citations and internal quotation marks omitted). 

157 Further, to the extent that the Sheriff’s Office made the decision regarding the 

stun belt, that decision process was unconstitutional. See Gonzalez, 341 F.3d at 902 

(finding a court violated defendant’s constitutional rights where correctional 

officers made the stun belt determination, as “[t]he use of physical restraints is 

subject to close judicial, not law enforcement, scrutiny”). 

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Because of the variety of prejudices attributable to restraints—both visible to 

the jury and not—that the trial court forced Kiles to wear restraints without an 

individualized finding of necessity violated Kiles’s rights to a fair trial, to an 

impartial jury, and to effective assistance of counsel. With respect to the stun belt 

in particular, “the nature of the device and its effect upon the wearer when activated, 

requiring an unwilling defendant to wear a stun belt during trial may have 

significant psychological consequences . . . [which] cannot be understated.” 

Gonzalez, 341 F.3d at 900. Even more so than shackles, the stun belt “may impede 

the defendant’s ability to communicate with his counsel and to participate in the 

defense of the case.” Gonzalez, 341 F.3d at 900; see also Deck v. Missouri, 544 

U.S. 622, 631–32 (2005). All of these forms of prejudice infected Kiles’s penaltyphase proceedings and had a “substantial and injurious effect” on his sentence. See 

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also State v. Gomez, 123 P.3d 

1131, 1139–42 (Ariz. 2005) (vacating death sentence because defendant was 

shackled at penalty phase without individualized finding of necessity). Kiles is 

entitled to relief. 

B. The trial court violated Kiles’s constitutional rights during his 

penalty-phase voir dire. 

As discussed in Claim 4, supra, the Constitution safeguards against a 

mandatory death sentence upon conviction. Woodson v. North Carolina, 428 U.S. 

280 (1976). At the heart of that protection is the right to be sentenced by jurors who 

make an individualized and reasoned moral decision whether life or death is the 

appropriate sentence by considering and giving full effect to all mitigation. See, 

e.g., Lockett v. Ohio, 438 U.S. 586 (1978). 

1. The trial court should not have struck Prospective Juror 56 

based on her views of the death penalty, as she evidenced her 

ability to be fair and impartial. 

The trial court’s removal of Prospective Juror 56 for cause violated Kiles’s 

federal constitutional rights. As discussed in Claim 4, supra, a state may not 

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“entrust the determination of whether a man should live or die to a tribunal 

organized to return a verdict of death.” Witherspoon v. Illinois, 391 U.S. 510, 521 

(1968). In Witherspoon, the Supreme Court held that “a sentence of death cannot 

be carried out if the jury that imposed or recommended it was chosen by excluding 

veniremen for cause simply because they voiced general objections to the death 

penalty or expressed conscientious or religious scruples against its infliction.” Id. 

at 522. The imposition of death upon a criminal defendant by “a hanging jury” 

simply “cannot be squared” with the due process guarantee. Id. at 522–23. The 

Supreme Court has since clarified that the operative question is “whether the juror’s 

views would ‘prevent or substantially impair the performance of his duties as a juror 

in accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 

412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). 

In Adams, the Court reversed a defendant’s death sentence under 

circumstances similar to those in Kiles’s case. There, a trial court excused 

prospective jurors from jury service who stated during voir dire “that they would 

be ‘affected’ by the possibility of the death penalty, but who apparently meant only 

that the potentially lethal consequences of their decision would invest their 

deliberations with greater seriousness and gravity or would involve them 

emotionally.” 448 U.S. at 49. The trial court also excluded for cause jurors who 

“were unable positively to state whether or not their deliberations would in any way 

be ‘affected.’” Id. at 50. In reversing the defendant’s death sentence, the Supreme 

Court stated: “[N]either nervousness, emotional involvement, nor inability to deny 

or confirm any effect whatsoever is equivalent to an unwillingness or an inability 

on the part of the jurors to follow the court’s instructions and obey their oaths, 

regardless of their feelings about the death penalty.” Id. It concluded that the trial 

court’s “grounds for excluding these jurors were consequently insufficient under 

the Sixth and Fourteenth Amendments.” Id. 

As in Adams, the trial court’s for-cause removal of Prospective Juror 56 due 

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to her views on capital punishment violated Kiles’s constitutional rights. The record 

contains no indication that Prospective Juror 56’s views on capital punishment 

“would prevent or substantially impair the performance of [her] duties as a juror[.]” 

Wainwright, 469 U.S. at 434. Indeed, the record illustrates that Prospective Juror 

56 instead expressed that, though she did not personally believe in the death penalty, 

she could impose it. (Tr. Mar. 7, 2006 at 93.) The court stated that he would dismiss 

her because she did not want to be a part of the process and was “just too conflicted, 

I think, in her views to be fair and impartial.” (Tr. Mar. 16, 2006 at 5.) However, 

Prospective Juror 56 stated in voir dire that she could consider all evidence and 

keep an open mind. (Tr. Mar. 7, 2006 at 92–93.) She explained more than once that 

she would follow the law. (Tr. Mar. 7, 2006 at 94, 96.) In sum, she was qualified to 

serve on Kiles’s jury. 

 The trial court’s decision to strike Prospective Juror 56 for cause prejudiced 

Kiles. Where a “scrupled, yet eligible” juror is removed in violation of Witherspoon 

and Witt, it constitutes prejudice and no harmless-error analysis is required. Gray 

v. Mississippi, 481 U.S. 648, 668 (1987). 

2. The trial court should have struck Prospective Jurors 78 

and 82 for cause based on their views of the death penalty. 

The trial court erred in refusing to strike for cause Prospective Jurors 78 and 

82, who would have automatically imposed the death penalty and were substantially 

impaired in their ability to be fair and impartial. Under the Sixth and Fourteenth 

Amendments, a defendant has a right to an unbiased and impartial jury. Morgan v. 

Illinois, 504 U.S. 719, 727 (1992). In Morgan, the Supreme Court emphasized that 

any juror who would automatically impose the death penalty upon conviction of the 

capital offense charged must be disqualified for cause. 504 U.S. at 729, 735–36. 

Kiles’s counsel moved to strike Prospective Jurors 78 and 82 for cause 

because their ability to act impartially was substantially impaired by their strong 

support for the death penalty and other facts. (Tr. Mar. 16, 2006 at 9–15.) These 

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were the only two prospective jurors whom counsel moved to strike for cause. 

Prospective Juror 78 stated on his questionnaire and in voir dire that he would 

vote for death for first-degree murder if it were an option, that he would give death 

if a person were guilty beyond a reasonable doubt, and that a person should “expect 

the max.” (Tr. Mar. 8, 2006 at 55.) The court stated that he would not dismiss 

Prospective Juror 78 for cause because: 

a lot of people come into the process thinking that if you’re 

convicted it’s an automatic thing, the death penalty’s an 

automatic thing, and they kind of have to be educated and 

they have to be impartially so, so I don’t give an extreme 

amount of weight to those comments. 

(Tr. Mar. 16, 2006 at 12.) This reasoning flies in the face of constitutional 

precedent. The court conceded that “it’s a little bit of a close case.” (Tr. Mar. 16, 

2006 at 12.) The prospective juror’s statements were particularly concerning given 

that a different jury had already found Kiles guilty beyond a reasonable doubt in 

2000; this jury was going to be instructed to rely on that finding. 

Prospective Juror 82 stated that the death penalty should be required where 

there is no remorse. (Tr. Mar. 8, 2006 at 103–04.) He also said that his aunt was 

beaten and murdered in 2001 by a man who entered her home, that proceedings 

were ongoing for mental-illness reasons, and that he had sentenced a person to death 

while serving on a Nevada jury in the late 1980s. (Tr. Mar. 8, 2006 at 99–102.) The 

court denied counsel’s motion to dismiss him for cause because he felt his concerns 

could be addressed with jury instructions and arguments of counsel.158 (Tr. Mar. 16, 

 

158 The court relied on the State’s arguments that both Prospective Jurors 78 and 82 

said that they could follow instructions. Promises that a juror can be fair or follow 

the law are insufficient under the Constitution. “It may be that a juror could, in good 

conscience, swear to uphold the law and yet be unaware that maintaining such 

dogmatic beliefs about the death penalty would prevent him or her from doing so.” 

Morgan, 504 U.S. at 735 (footnote omitted). The court failed to search beyond the 

promise to be fair, to follow instructions, to inquire into the dogmatic beliefs of the 

jurors as required by Morgan. 

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2006 at 15.) 

In order to determine if a defendant was prejudiced by the trial court’s failure 

to excuse a biased juror for cause, this Court must determine whether the 

composition of the jury panel as a whole was affected by the trial court’s error. 

Gray, 481 U.S. at 665. This decision by the trial court was in error and prejudiced 

Kiles. Preliminarily, the “presence of a biased juror cannot be harmless; the error 

requires a new trial without a showing of actual prejudice.” United States v. 

Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (quoting Dyer v. Calderon, 151 F.3d 

970, 973 n.2 (9th Cir. 1998)); Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 

2001). Here, as a result of the trial court’s errors, defense counsel was required to 

use two peremptory strikes to remove these biased jurors from the panel. This was 

improper and a violation of Kiles’s Sixth Amendment rights. See Ross v. Oklahoma 

487 U.S. 81, 89 (1988) (“[T]he right to peremptory challenges is denied or impaired 

only if the defendant does not receive that which state law provides.” (internal 

quotation marks omitted)). Further, the trial court’s failure to strike these 

prospective jurors meant that Kiles’s peremptory challenges were unavailable to 

remove other jurors who ultimately served on his jury even though they too were 

biased against Kiles. See Claim 4, supra. The trial court’s refusal to strike these two 

prospective jurors for cause had a “substantial and injurious effect” on Kiles’s 

sentence. See Brecht, 507 U.S. at 623. 

3. The trial court erred in permitting statements in voir dire 

and on the juror questionnaire that implied that, if 

sentenced to life in prison, Kiles would be eligible for parole

in 25 years. 

Both the juror questionnaire and voir dire proceedings included multiple 

statements that implied that Kiles could be eligible for parole after serving 25 years. 

This was not accurate based on the crimes of which he had been convicted. While 

the court later attempted to correct this misstep with a jury instruction (Tr. May 22, 

2006 at 15; Tr. Mar. 16, 2006 at 17–19), that instruction was insufficient to counter 

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the belief implanted in the jurors’ minds from the outset that Kiles could be eligible 

for parole after 25 years in prison. This was particularly damaging given that Kiles 

had already served 17 years in prison by the time the penalty phase commenced. 

The Supreme Court has held that a jury must be properly informed of a 

defendant’s lack of eligibility for parole. See Simmons v. South Carolina, 512 U.S. 

154, 163 (1994); see also Lynch v. Arizona, 136 S. Ct. 1818, 1819 (2016). 

 The first page of the juror questionnaire stated that, if the jury found that 

there were aggravating factors in this case, they would determine the penalty to be 

imposed. The questionnaire indicated, “[t]here would be two options. They include 

(a) death or (b) life in prison for which the defendant will be eligible for parole after 

serving 25 years. There are no other possible sentences for the murder charge.” This 

statement was misleading, as it (1) failed to mention that Kiles already faced two 

sentences of 35 years in prison without the possibility of parole for his child-abuse 

convictions, and (2) minimized that Kiles had been found guilty of three counts of 

first-degree murder. The questionnaire asked jurors their feelings on “a sentence of 

life in prison with parole eligibility after 25 years for a person convicted of firstdegree murder.” The questionnaire also posed a question that started as follows: 

“Assume you are on a jury to determine the punishment for a defendant who has 

already been convicted of murder and the law gives you a choice of imposing death 

or life imprisonment with parole after 25 years.” Throughout voir dire, prosecutor 

Powell made reference to these questions, including when speaking to jurors who 

were eventually seated. (E.g., Tr. Mar. 6, 2006 at 98, 129; Tr. Mar. 8, 2006 at 53, 

102.) 

This clearly influenced prospective jurors, likely including those who were 

ultimately seated. The majority of the venire voiced objections to the release of a 

person convicted of first-degree murder after 25 years. (ROA 760 at 4.) After voir 

dire, defense counsel argued a motion to clarify that Kiles would not be eligible for 

parole after 25 years. (Tr. Mar. 16, 2006 at 18.) The court admitted his error during 

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voir dire, stating: “Yeah, and I feel bad about that.” (Tr. Mar. 16, 2006 at 19.) The 

court decided that they could “probably undo the damage.”159 He continued: “I 

wasn’t thinking in terms of the 35 with the kids, and I was only thinking about the 

murder counts. I wasn’t even factoring in the child abuse.” (Tr. Mar. 16, 2006 at 

19.). Even the prosecutor noted: “That was the one theme that ran through all the 

juror questionnaires more than anything else. People were concerned with life with 

a possibility in 25.” (Tr. Mar. 16, 2006 at 26.) 

The trial court’s error in permitting the jurors to hear via questionnaire and 

voir dire that Kiles would be eligible for parole after 25 years had a “substantial and 

injurious effect” on Kiles’s sentence. See Brecht, 507 U.S. at 623. Jurors who 

believed that Kiles could be released if they did not sentence Kiles to death were 

much more likely to vote for death. See Simmons, 512 U.S. at 163 (“Holding all 

other factors constant, it is entirely reasonable for a sentencing jury to view a 

defendant who is eligible for parole as a greater threat to society than a defendant 

who is not.”). “The shorter the period of time a juror thinks the defendant will be 

imprisoned, the more likely he or she is to vote for death on the final ballot.” John 

H. Blume, et al., Future Dangerousness in Capital Cases: Always “At Issue,” 86 

Cornell L. Rev. 397, 404 (2001). Kiles was prejudiced and is entitled to relief.

C. The trial court erred in denying defense counsel’s motion for a

directed verdict on the “especially heinous, cruel or depraved”

aggravating circumstance. 

The trial court denied defense counsel’s motion pursuant to Arizona Rule of 

Criminal Procedure 20 for a directed verdict on the “especially heinous, cruel or 

depraved” aggravator under A.R.S. § 13-703(F)(6) (1988). (Tr. Apr. 4, 2006 at 25.) 

That denial was of constitutional magnitude, as no reasonable factfinder could find 

 

159 The trial court further compounded this error—and did not undo the damage—

by declining to sentence Kiles on the two child abuse counts prior to the aggravation 

phase, as defense counsel requested, to make clear to the jury that Kiles was not 

going to be released from prison. (Tr. Mar. 16, 2006 at 30.) 

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beyond a reasonable doubt that the aggravating circumstance existed based on the 

facts presented at trial. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 91–92.) The Arizona 

Supreme Court determined that its analysis of this claim was subsumed by its 

independent review of the aggravating circumstances and denied the claim. State v. 

Kiles, 213 P.3d 174, 188 n.18 (Ariz. 2009). As explained in Claim 12, infra, that 

ruling was an unreasonable application of or contrary to clearly established federal 

law, see 28 U.S.C. § 2254(d)(1), and was based on unreasonable determination of 

facts, see id. § 2254(d)(2). Preliminarily, the Arizona Supreme Court relied upon 

Kiles’s “admissions” and the testimony regarding “defensive wounds” in finding 

that the State had established “cruelty.” Kiles, 213 P.3d at 188. Kiles made only one 

admission about how Gunnel’s death unfolded, to Larry Hawkins, and there was 

testimony about only one defensive wound. (Tr. July 13, 2000 at 99; see also Tr. 

Mar. 21, 2006 at 21.) The Arizona Supreme Court also relied, for example, on the 

transfer blood stain on the door as evidence that Gunnel or her attacker was moving; 

however, Kiles’s friend, Kale Johnson, had given a sworn statement acknowledging 

that he had caused the blood stain on the door. (Tr. July 14, 2000 at 134–35; Tr. 

July 17, 2000 at 35; Tr. Apr. 27, 2006 at 78; PFR2 Dkt. 20 Ex. 1 at 7.) 

As explained in detail in Claim 12, infra, based on the State’s evidence at 

trial, no reasonable jury could find the (F)(6) aggravating circumstance proven 

beyond a reasonable doubt. Lewis v. Jeffers, 497 U.S. 764, 783 (1990). The trial 

court’s finding that sufficient evidence existed to support this aggravator “was so 

arbitrary or capricious as to” violate Kiles’s due process and Eighth Amendment 

rights. See id. at 780. “Cruelty” was the sole aspect of the (F)(6) aggravator found 

unanimously by the jury and affirmed on appeal with respect to Gunnel’s death, and 

the elimination of the (F)(6) aggravator would have significantly affected the jury’s 

sentencing deliberations. The trial court’s denial thus had a substantial and injurious 

effect on the sentencing verdict. See Rogers v. McDaniel, 793 F.3d 1036, 1042 (9th 

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Cir. 2015) (“[W]here a judge in a habeas proceeding is in grave doubt as to the 

harmlessness of the error, the habeas petitioner must win.” (quoting Pensinger v. 

Chappell, 787 F.3d 1014, 1029 (9th Cir. 2015)).

D. The trial court erred in not striking the (F)(8) aggravator as 

unconstitutionally vague. 

After the aggravation phase, the jury made Enmund/Tison findings regarding 

the deaths of the two children. (See ROA 879 at 1–4.) Those findings reflected that 

two of the jurors were not convinced beyond a reasonable doubt that Kiles himself 

killed the children. (ROA 879 at 1–4.) Even so, the jury proceeded to find that the 

State had proven the (F)(8) aggravator for multiple homicides. (See ROA 879 at 6, 

9, 12); see also A.R.S. § 13-703(F)(8) (1988) (“[t]he defendant has been convicted 

of one or more other homicides . . . committed during the commission of the 

offense”). 

Accordingly, the jury applied the (F)(8) aggravator even though it found the 

State had not proven beyond a reasonable doubt that the defendant himself killed 

more than one victim. If the aggravating circumstance applies in such broad 

circumstances, it fails to genuinely narrow the class of offenders eligible for the 

death penalty. See Maynard v. Cartwright, 486 U.S. 356, 363 (1988) (aggravating 

circumstances that do not appropriately limit application of the death penalty are 

unconstitutional because they fail to adequately channel the sentencing discretion 

of the jury). The (F)(8) aggravator thus runs afoul of the Eighth Amendment. See 

id.; see also, e.g., Godfrey v. Georgia, 446 U.S. 420, 433 (1980). 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 92–93.) However, 

at no point did the Arizona Supreme Court consider or address Kiles’s argument of 

vagueness under the Eighth Amendment. Instead of considering the issue raised by 

Kiles, the court misconstrued Kiles’s argument and reaffirmed that the jury finding 

of the (F)(8) aggravator was not in error. Kiles, 213 P.3d at 186. Because the state 

court did not adjudicate this claim on the merits, this Court is not bound by the 

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strictures of § 2254(d). The trial court erred in not striking this aggravator as vague, 

and—because Arizona is a weighing state in which jurors weigh the aggravators 

against the mitigation—that error was substantial and injurious. See Brecht, 507 

U.S. at 623; see also Brown v. Sanders, 546 U.S. 212, 220 (2006). 

E. The trial court denied Kiles’s due-process rights by admitting a 

gruesome and unduly prejudicial photograph. 

Over defense objection, the trial court admitted into evidence a gruesome 

photograph, described in Claims 3 and 7, supra, at Kiles’s aggravation phase. (Tr. 

Mar. 20, 2006 at 25–38; see also 2006 Trial Ex. 72.) The admission of that 

photograph, which was so haunting as to infect the reliability of Kiles’s entire 

penalty phase, violated Kiles’s due-process rights. See, e.g., Zant v. Stephens, 462 

U.S. 862, 879, 885 (1983) (the jury should not be allowed to consider evidence that 

is “totally irrelevant to the sentencing process” and fails to focus on “the character 

of the individual and circumstances of the crime”); Romano v. Oklahoma, 512 U.S. 

1, 12 (1994). 

Kiles raised this claim on appeal. (DA2 Dkt. 86 at 56–66) As discussed 

supra, Claim 7, the Arizona Supreme Court’s determination that this photograph 

did not prejudice Kiles, see Kiles, 213 P.3d at 183, was an unreasonable application 

of or contrary to clearly established Supreme Court precedent, see 28 U.S.C. 

§ 2254(d)(1), and rested on an unreasonable determination of fact, see id.

§ 2254(d)(2). Certainly the prejudice from such a disturbing image can infect 

matters beyond whether the defendant is sentenced to death for killing the particular 

victim in the photograph. Because of the horrifying nature of Exhibit 72 and its 

tendency to arouse emotion in the jurors, along with its complete lack of probative 

value, the trial court’s admission of the photograph violated Kiles’s due-process 

rights and prejudiced him. See Brecht, 507 U.S. at 623.

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F. The trial court unconstitutionally permitted the victims’ attorney 

to file pleadings, including a requested jury instruction. 

The trial court permitted the victims’ attorney to file pleadings and suggest 

jury instructions. This caused the victims’ attorney to effectively become a second 

prosecutor, which violated Kiles’s rights to due process and to a fair trial under the 

Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. 

The laws of Arizona prescribe in detail the rights of victims. Here, the trial 

court erred when it permitted the victims’ attorney to file pleadings. The victims’ 

attorney both filed a motion in response to the defense’s motion to preclude victimimpact evidence and filed a motion in limine to request a jury instruction on victimimpact evidence (ROA 724; ROA 775.) The court adopted this instruction, but 

added limitations. (Tr. May 22, 2006 at 22.) 

That the trial court allowed Kiles to face prosecution by not one, but two, 

entities violated his constitutional rights to due process and a fair trial. This error 

had a “substantial and injurious effect” on Kiles’s sentence. See Brecht, 507 U.S. at 

623. Kiles is entitled to relief. 

G. The trial court unconstitutionally permitted the introduction of 

victim-impact evidence. 

The trial court violated Kiles’s constitutional rights when it permitted 

prejudicial victim-impact evidence to be presented to the jury. The admission at a 

capital-sentencing proceeding of any victim-impact evidence violates the Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. The constitutionality 

of a capital-sentencing proceeding hinges entirely on its reliability—on minimizing 

the risk that the sentencer will impose a death sentence based on an impermissible 

consideration. See, e.g., Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality 

opinion) (“It is of vital importance to the defendant and to the community that any 

decision to impose the death sentence be, and appear to be, based on reason rather 

than caprice or emotion.”); Gregg v. Georgia, 428 U.S. 153, 189 (1976) (joint 

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opinion of Stewart, Powell, and Stevens, JJ.) (declaring that “where discretion is 

afforded a sentencing body on a matter so grave as the determination of whether a 

human life should be taken or spared, that discretion must be suitably directed and 

limited so as to minimize the risk of wholly arbitrary and capricious action”). 

Victim-impact evidence is emotionally laden; it provokes in jurors a response 

that is neither reasoned nor rational and that jurors are ill-equipped to set aside. 

Accordingly, victim-impact evidence is inadmissible at a capital-sentencing 

proceeding. See Susan A. Bandes & Jessica M. Salerno, Emotion, Proof and 

Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact 

Statements, 46 Ariz. St. L.J. 1003, 1035–36 (2014) (citing research on the increased 

punitiveness of jurors exposed to victim-impact evidence); but see Payne v. 

Tennessee, 501 U.S. 808 (1991). The admission of Gunnel’s family’s emotionally 

fraught statements, alongside the pictures, prejudiced Kiles. 

The Supreme Court has recognized that victim-impact evidence can be so 

unduly prejudicial as to render a sentencing fundamentally unfair. See Payne, 501 

U.S. at 825; see also Gretzler v. Stewart, 112 F.3d 992, 1009 (9th Cir. 1997). And, 

when members of the victim’s family offer characterizations and opinions about the 

crime, the defendant suffers a fundamental violation of his due-process and EighthAmendment rights. See Booth v. Maryland, 482 U.S. 496, 509 (1987), overruled on 

other grounds by Payne, 501 U.S. at 808. 

The parties litigated the admissibility of and restrictions on victim-impact 

evidence in 2000 and then again in 2005. (Tr. Dec. 29, 2000 at 28–29; ROA 512 at 

1; ROA 517 at 1; ROA 722 at 1; ROA 724 at 1; ROA 733 at 1.) The court precluded 

victim-impact evidence from the presentence report but determined that victims 

could make impact statements at the hearing. (ROA 481 at 1; Tr. Dec. 29, 2000 at 

27–29.) In 2005, defense counsel sought to have victim-impact evidence precluded 

altogether and, failing that, to have limitations placed on the evidence to cabin its 

prejudicial nature. (See ROA 695 at 1). 

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After defense counsel’s opening statement, the State presented victim-impact 

statements. (Tr. Apr. 24, 2006 at 22–27.) The attorney for the victims read a letter 

by Gunnel’s brother. (Tr. Apr. 24 2006 at 22–24.) Gunnel’s mother then made a 

statement in person. (Tr. Apr. 24, 2006 at 24–26.) She then read a letter by Gunnel’s 

sister. (Tr. Apr. 24, 2006 at 26–27.) While the jury listened to the victim-impact 

statements, the State displayed a large exhibit on an easel that was a collage of 

photographs of the victims. (Tr. Apr. 24, 2006 at 22; 2006 Trial Ex. 163 at 1–2.) 

The victim-impact evidence at trial violated Kiles’s constitutional rights to a 

fair trial and a reliable sentence by injecting an irrelevant and highly prejudicial 

characterization of the crime into his capital sentencing proceedings. The 

statements detailing the victims’ lives from childhood on, in conjunction with 

numerous photographs shown to the jury, were so prejudicial as to undermine the 

reliability of the sentencing proceeding. (Tr. Apr. 24, 2006 at 22, 24–26.) It likely 

aroused in jurors enormous sympathy toward the victims and antipathy toward the 

defendant, especially when the grandmother detailed how her granddaughter’s body 

was found floating in a river. (Tr. Apr. 24, 2006 at 26.) Accordingly, the victimimpact testimony in this case violated Kiles’s constitutional rights by inviting a 

verdict based on sentiment, instead of the requisite reasoned judgment. 

Finally, witnesses, including victim-impact witnesses, making statements at 

penalty-phase proceedings must be under oath and subject to cross-examination. 

The Sixth and Fourteenth Amendments guarantee a defendant the “right to be 

confronted with the witnesses against him.” See Pointer v. Texas, 380 U.S. 400, 

405 (1965) (internal quotation marks omitted). The Supreme Court made clear in 

Crawford v. Washington that the Confrontation Clause guarantees confrontation 

against those “who bear testimony” against a defendant. 541 U.S. 36, 51 (2004). 

The right to confrontation is the favored procedure for determining the reliability 

of a witness’s statements, see id. at 61, and nowhere is that reliability more 

necessary than in a capital-sentencing proceeding, see Woodson, 428 U.S. at 305. 

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Accordingly, all who bear witness during the penalty phase of a capital trial must 

be subject to confrontation. 

Here, the State presented one in-person victim-impact witness who was not 

under oath or subject to cross-examination, and read two letters by people who were 

not present. (Tr. Apr. 24, 2006 at 22–27.) Kiles was thus denied the opportunity to 

cross-examine these witnesses, and that denial prejudiced Kiles and violated his 

Sixth and Fourteenth Amendment rights. 

The presentation of victim-impact evidence influenced the jury. One juror 

commented that as soon as they saw the photographs, they had made up their mind 

on death. The admission of victim-impact evidence prejudiced Kiles as it had a 

“substantial and injurious effect” on Kiles’s sentence. See Brecht, 507 U.S. at 623. 

Accordingly, Kiles is entitled to relief. 

H. The trial court unconstitutionally permitted the State to ask 

witnesses at trial about statements contained in the reports of

experts who testified at the first trial but not at the second trial, in 

violation of Kiles’s rights. 

The trial court violated Kiles’s rights under the Sixth and Fourteenth 

Amendments when it permitted the State to ask witnesses about the content of 

reports by experts who testified at Kiles’s first trial in 1990, but who did not testify 

at the second trial in 2006. 

As discussed above, the Sixth and Fourteenth Amendments guarantee a 

criminal defendant the “right to be confronted with the witnesses against him.” 

Pointer, 380 U.S. at 405 (internal quotation marks omitted). The Supreme Court 

has repeatedly held that admitting testimonial out-of-court statements where 

defense counsel has not had the opportunity to cross-examine the witness violates 

these principles. E.g., Crawford, 541 U.S. at 68–69 (“Where testimonial statements 

are at issue, the only indicium of reliability sufficient to satisfy constitutional 

demands is the one the Constitution actually prescribes: confrontation.”); see also 

State v. Prince, 250 P.3d 1145, 1159 (Ariz. 2011) (holding that a “defendant has a 

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right to confront testimonial hearsay evidence introduced to establish an 

aggravating factor”). The defendant’s right to cross-examine all who would offer 

evidence at trial is necessary to ensure the reliability of proceedings required by the 

due process clause, and nowhere is that reliability more necessary than in a capitalsentencing proceeding. See Woodson, 428 U.S. at 305. Testimonial evidence—that 

is, evidence prepared in anticipation of trial—must be presented by the person who 

prepared it. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308–11 

(2009). 

At trial, the State directly asked multiple experts about Kiles’s statements 

that experts retained for the first penalty-phase hearing in 1990 recorded in their 

reports. (E.g., Tr. May 8, 2006 at 41–44; Tr. May 9, 2006 p.m. at 11–12; Tr. May 

15, 2006 at 50, 55.) However, the proceedings for which these reports were 

produced were deemed unreliable because of the ineffective assistance of counsel, 

and Kiles was granted state post-conviction relief. (See ROA 314 at 4.) 

Nevertheless, the court allowed the State to ask the experts about the content of 

these reports and whether they differed from Kiles’s later statements. (E.g., Tr. May 

8, 2006 at 41–44; Tr. May 9, 2006 p.m. at 11–12; Tr. May 15, 2006 at 50, 55.) 

VanDreumel objected the first time the State did this, because permitting 

these statements to come in violated Kiles’s constitutional confrontation clause 

rights under Crawford. (Tr. May 8, 2006 at 41, 43, 54.) She argued that Kiles was 

being denied his right to cross-examine the doctors who wrote the reports as to 

whether Kiles made the statements in question. (Tr. May 8, 2006 at 54.) While 

VanDreumel objected during the testimony, the grounds for her objection were not 

placed on the record until the end of the day, and the court did not clearly rule on 

the objection on the record. (Tr. May 8, 2006 at 54–58.) The court did state that he 

would not allow a particular question. (Tr. May 8, 2006 at 44.) However, Powell 

continued to ask questions along these lines, apparently with the court’s approval, 

even though these reports were clearly testimonial, as they had been prepared in 

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advance of the first trial and entered into evidence at the first trial. (Tr. May 8, 2006 

at 44–47; 1990 Trial Def. Ex. 3; 1990 Trial Def. Ex. 4; 1990 Trial State Ex. 7.) 

Putting this evidence before the jury violated Kiles’s Sixth and Fourteenth 

Amendment rights to confront the witnesses against him, and was inconsistent with 

the Supreme Court’s Sixth Amendment jurisprudence including Crawford. Even if 

the rules of evidence regarding “hearsay” did not apply to the State’s penalty-phase 

presentation, the Sixth Amendment demands more. See Crawford, 541 U.S. at 68. 

Kiles suffered prejudice from the court permitting the contents of prior 

experts’ reports into evidence. Throughout the penalty phase, the State hammered 

the theme that Kiles was not telling the truth—in particular, that his story had 

changed over the years. (E.g., Tr. May 22, 2006 at 72; Tr. May 8, 2006 at 48; Tr. 

May 9, 2006 p.m. at 11–12; Tr. May 15, 2006 at 55.) As a result, the State argued 

that the jury should not believe his mitigation pertaining to his traumatic childhood, 

substance abuse, and mental illness. (E.g., Tr. May 22, 2006 at 72.) In closing, the 

State focused on how Kiles’s experts’ diagnoses were based on Kiles’s “selfserving” statements. (Tr. May 22, 2006 at 72.) The State went so far as to say “as 

you have heard from some of the earlier doctors that examined him, everything was 

fine,” as if those doctors had testified. (Tr. May 22, 2006 at 73.) However, Kiles 

did not have a chance to cross-examine these doctors, as required by Crawford. The 

jury was likely influenced by this testimony, which became central to the State’s 

penalty-phase case. The constitutional violation therefore had a substantial and 

injurious effect at the penalty phase. See Ocampo v. Vail, 649 F.3d 1098, 1114 (9th 

Cir. 2011) (citing Brecht, 507 U.S. at 623, in finding that a confrontation clause 

violation warranted habeas relief.). Accordingly, Kiles is entitled to relief. 

I. The trial court unconstitutionally failed to provide the jury with a 

special verdict form listing the specific mitigating factors they 

found proven, violating Kiles’s rights. 

The trial court violated Kiles’s rights under the Eighth and Fourteenth 

Amendments to the U.S. Constitution because it did not require the jurors to make 

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specific findings as to each proffered mitigating factor. 

The Eighth and Fourteenth Amendments require states to provide a 

mechanism for meaningful direct review of death sentences. Gregg, 428 U.S. at 

197–98 (joint opinion of Stewart, Powell, and Stevens, JJ.). In order to achieve such 

meaningful review, “it is important that the record on appeal disclose to the 

reviewing court the considerations which motivated the death sentence in every 

case in which it is imposed.” Gardner, 430 U.S. at 361 (plurality opinion). Arizona 

law helps to ensure meaningful review in non-capital cases, for which the court is 

required to state for the record the mitigating and aggravating factors it considers 

and applies when imposing any sentence other than the presumptive term. A.R.S. § 

13-701(C); State v. Harrison, 985 P.2d 486 (Ariz. 1999). However, Arizona fails 

to offer such protections to capital defendants. The trial court did not require the 

jury to identify in its verdict form which mitigating circumstances individual jurors 

deemed proven. See A.R.S. § 13-701. The verdict forms in Kiles’s case thus reflect 

only the ultimate sentence the jury deemed appropriate for each first-degree murder 

conviction. (See ROA 919 at 1–3.) 

As a result, when the Arizona Supreme Court conducted its independent 

review of the “aggravation, mitigation, and the propriety of the sentence” in Kiles’s 

case, see Kiles, 213 P.3d at 187–92, it did so without the benefit of knowing which 

mitigating circumstances jurors had found proven. In other words, the court 

conducted its appellate review without knowing the considerations that motivated 

the death sentence. That appellate review was not the meaningful review 

contemplated by Gregg. See Gardner, 430 U.S. at 361 (plurality opinion). That such 

a review—done without information on what informed the jury’s decision—could 

not have been meaningful is especially true in this case, where the jury was asked 

to consider an enumerated list of mitigating circumstances and where the jury 

determined that death was the appropriate sentence on one count of first-degree 

murder but that life imprisonment was appropriate for two other counts. (See Tr. 

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May 22, 2006 at 19–21; ROA 919 at 1–3.) 

The trial court’s failure to require special verdict forms indicating which 

mitigating circumstances the jurors found proven deprived Kiles of an adequate 

appellate review and violated his rights under the Eighth and Fourteenth 

Amendments to the U.S. Constitution. This error had a “substantial and injurious 

effect” on Kiles’s sentence. See Brecht, 507 U.S. at 623. Accordingly, Kiles is 

entitled to relief. 

J. The trial court unconstitutionally failed to make a complete record 

at trial, in violation of Kiles’s rights. 

As discussed above, a complete record is necessary to protect Kiles’s 

Fourteenth Amendment right to meaningful appellate review. See Gregg, 428 U.S. 

at 195 (joint opinion of Stewart, Powell, and Stevens, JJ.); Dobbs v. Zant, 506 U.S. 

357, 358 (1993). A state must provide the defendant “a sufficiently complete record 

of the trial proceedings,” Draper v. Washington, 372 U.S. 487, 500 (1963), to 

“assure the indigent defendant an adequate opportunity to present his claims fairly 

in the context of the [s]tate’s appellate process.” Ross v. Moffitt, 417 U.S. 600, 616 

(1974). 

Kiles’s trial court failed to make a record of a number of essential penaltyphase proceedings. For example, there is no transcript or other record of any 

discussion regarding either party’s proposed penalty-phase jury instructions. 

Further, at multiple points, counsel approached the bench and had discussions that 

were not recorded. (E.g., Tr. Apr. 27, 2006 at 50; Tr. May 16, 2006 at 45.) In 

addition, the questionnaires completed by Prospective Jurors 98 and 85, whom the 

defense struck using peremptory strikes, were not preserved. (ROA 895 at 4.) 

The omissions from the trial court record deprived Kiles of meaningful 

review, because it was impossible for counsel or the courts after the conviction to 

conduct a proper review of the proceedings against Kiles. This knowledge is crucial 

to a meaningful review of counsel’s performance, and to meaningful appellate 

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review of Kiles’s convictions and sentence. The trial court’s failure to ensure a 

complete record deprived Kiles of a meaningful appellate review and violated his 

rights under the Eighth and Fourteenth Amendments. This error had a “substantial 

and injurious effect” on Kiles’s sentence. See Brecht, 507 U.S. 619 at 623. 

Accordingly, Kiles is entitled to relief. 

K. The cumulative effect of these trial-court errors prejudiced Kiles. 

The Ninth Circuit recognizes that the cumulative effect of multiple errors 

may still prejudice a defendant where no single trial error examined in isolation is 

sufficiently prejudicial to warrant reversal. See Parle v. Runnels, 505 F.3d 922, 934 

(9th Cir. 2007) (finding habeas relief warranted when combined effect of multiple 

trial errors resulted in injurious effect on jury’s verdict); Alcala v. Woodford, 334 

F.3d 862, 894–95 (9th Cir. 2003) (affirming grant of habeas relief where multiple 

errors by court and counsel deprived defendant of a fundamentally fair trial); Killian 

v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) (stating that the cumulative effect of 

errors may be so prejudicial as to require reversal).

The trial court committed numerous errors during the mitigation phase of 

Kiles’s trial. Even if this Court were to find that none of them merit relief alone, the 

cumulative effect of all the errors is so prejudicial that Kiles is entitled to relief on 

that basis. For all the reasons discussed above, Kiles’s constitutional rights were 

violated, and he is entitled to relief. 

Claim Nine 

Kiles was deprived of his right to due process and a fair trial because 

the prosecutor engaged in pervasive misconduct. 

 The State’s misconduct violated Kiles’s rights to a fair trial, to present a 

complete defense, to due process, and to reliable guilt and sentencing 

determinations in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments 

to the U.S. Constitution. Kiles incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

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This claim was raised by Kiles’s appellate counsel, but it was waived because 

Kiles’s appellate attorney failed to argue the claim in his opening brief. (See ROA 

1189 at 64–65); see Claim 11, infra. However, the claim was addressed on the 

merits by the state post-conviction court when the court considered appellate 

counsel’s ineffective assistance. (ROA 1214 at 2; see also ROA 1189 at 61–65.) 

The state court’s denial of this claim as not colorable was an unreasonable 

application of or contrary to clearly established federal law, see 28 U.S.C. 

§ 2254(d)(1), and rested on an unreasonable determination of the facts, id.

§ 2254(d)(2). Accordingly, the strictures of § 2254(d) do not apply to this claim, 

and this Court may review the merits of this claim de novo.160

 Prosecutors occupy a unique position in the justice system and are therefore 

subject to uniquely rigorous standards. Although a prosecutor “may strike hard 

blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from 

improper methods calculated to produce a wrongful conviction as it is to use every 

legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 

88 (1935). His interest in a criminal prosecution is not to win a case, but “that justice 

shall be done.” Id. at 88; see also United States v. Kojayan, 8 F.3d 1315, 1323 (9th 

Cir. 1993) (explaining that a “prosecutor’s job isn’t just to win, but to win fairly, 

staying well within the rules”). Kiles’s prosecutor David Powell engaged in 

misconduct: he vouched for witnesses, mischaracterized or misstated evidence, put 

words into the mouths of witnesses, and put his own testimony into the record. The 

cumulative effect of Powell’s acts rendered the trial fundamentally unfair and 

prejudiced Kiles’s substantive rights. 

 To prevail on a prosecutorial misconduct claim, a petitioner must 

demonstrate that the prosecutor’s conduct either (1) prejudiced a substantive right, 

 

160 Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland v. Washington, 466 U.S. 

668, 688, 694 (1984). 

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see Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (citing Griffin v. 

California, 380 U.S. 609 (1965)), or (2) rendered the trial fundamentally unfair, see 

Berger, 295 U.S. at 78. When evaluating instances of prosecutorial misconduct, the 

reviewing court must consider the cumulative effect of the harm. See Berger, 295 

U.S. at 89 (awarding a new trial because of “probable cumulative effect” of 

instances of prosecutorial misconduct). Here, Kiles can show that the prosecutor’s 

conduct both prejudiced his substantive rights and rendered the trial fundamentally 

unfair. Thus, the prosecutorial misconduct had a “substantial and injurious effect” 

on Kiles’s convictions and sentences. See Brecht v. Abrahamson, 507 U.S. 619, 623 

(1993). 

A. The prosecutor committed misconduct in the guilt-phase 

proceedings. 

 Powell argued a theory of how the crime was committed that could not be 

reasonably inferred from the evidence. See United States v. Hermanek, 289 F.3d 

1076, 1101 (9th Cir. 2002) (holding that the prosecutor committed misconduct in 

urging the jury to assume facts that were not in evidence and could not be 

reasonably inferred from the evidence). There was little evidence to support 

Powell’s theory of how the crime occurred. (See Tr. July 12, 2000 at 104–41; Tr. 

July 13, 2000 at 93–107; Tr. July 14, 2000 at 4–61; Tr. Mar. 21, 2006 at 4–34; Tr. 

Mar. 27, 2006 at 11–140; Tr. Mar. 29, 2006 at 26–74.) 

 Additionally, Powell’s misleading and inflammatory arguments were not 

based on the evidence and were improper. See Darden v. Wainwright, 477 U.S. 168, 

180–81 (1986) (explaining that a prosecutor commits misconduct when he 

manipulates or misstates the evidence at trial); Zapata v. Vasquez, 788 F.3d 1106, 

1113–14 & n.6 (9th Cir. 2015) (explaining that the prosecutor committed “serious 

misconduct” by offering “as though it was fact” a “fictional” account of the 

defendant’s use of racial slurs as the victim died). 

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1. The prosecutor repeatedly mischaracterized testimony, 

made speculative arguments, and used inflammatory 

language in its guilt-phase opening and closing. 

 A prosecutor may not make inaccurate statements about the record that may 

mislead or confuse the jury. See King v. United States, 372 F.2d 383, 395 (D.C. Cir. 

1966); United States v. Robledo-Vela, 45 F. App’x 567, 568 (9th Cir. 2002) (finding 

“significant prosecutorial misconduct in the form of misstating evidence, and that 

this error was not harmless”). A prosecutor’s comments create prejudicial error if 

they constitute personal and institutional guarantees of trustworthiness of the 

government and its case. See United States v. Smith, 962 F.2d 923, 933 (9th Cir. 

1992). 

 As discussed in Claim 3, supra, Powell’s theory of the crime had next to no 

support from the evidence. In his guilt-phase opening statement, Powell claimed 

that Kiles began beating Valerie Gunnel in her bedroom. (Tr. July 10, 2000 at 13.) 

The beating continued into the living room, where Gunnel died. (Tr. July 10, 2000 

at 13.) Presumably, Powell’s objective was to convey that the prolonged, moving 

attack was evidence that Kiles premeditated the killing. However, as Detective 

Brian Rodgers testified, there was no blood spatter or castoff on the walls in 

Gunnel’s bedroom. (Tr. July 17, 2000 at 65.) Though a bloody pillow and a ratchet 

were found in Gunnel’s bedroom, Rodgers testified that items were moved around 

after the murder in what looked like an attempt to clean up the scene. (Tr. July 11, 

2000 at 166–67.) Powell never asked the State’s experts—the pathologist or the 

blood-spatter expert—about evidence probative of where the attack on Gunnel had 

started. (Tr. July 13, 2000 at 93–107; Tr. July 14, 2000 at 4–61.) Regardless, Powell 

asserted that Gunnel was first attacked in her bedroom. 

 Because Powell had little evidentiary support for this theory, he 

mischaracterized—and even made up—testimony to support his claim that Kiles 

had first hit Gunnel in her bedroom. Perhaps most egregious were Powell’s repeated 

and forceful misrepresentations during closing argument of Larry Hawkins’s 

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testimony. See supra, Claim 3. For instance, Powell proclaimed several times that 

Hawkins had testified that Kiles first attacked Gunnel in her bedroom. (Tr. July 18, 

2000 at 22; Tr. July 19, 2000 at 27; Tr. July 19, 2000 at 30; Tr. July 19, 2000 at 81–

82.) However, Hawkins never testified to this. (Tr. July 13, 2000 at 3–80.) Rather, 

Hawkins stated that after grabbing the tire jack, Kiles went into the apartment and 

“struck [Valerie].” (Tr. July 13, 2000 at 29.) Also contrary to Powell’s claim, 

Hawkins’s Silent Witness letter nowhere suggested that Kiles beat Gunnel in her 

bedroom. (Tr. Mar. 20, 2006 at 77.) Powell further alleged in closing that Gunnel 

“put up a fight,” and he claimed that Hawkins had testified to that point. (Tr. July 

19, 2000 at 82.) But Hawkins never did. (Tr. July 13, 2000 at 3–80.) Powell 

intentionally misstated Hawkins’s testimony to mislead the jury into believing the 

State had a clear-cut case that Gunnel’s death was premeditated. 

 Powell also told the jury in closing that photographs of blood patterns from 

the crime scene were “physical evidence.” Powell continued, “Like [defense] 

counsel told you in opening, it can’t be argued with.” (Tr. July 19, 2000 at 29.) In 

so arguing, Powell purposefully misstated defense counsel’s position and conflated 

physical evidence with scientific or forensic evidence. Defense counsel had 

conveyed in opening that the scientific evidence in Kiles’s case was not subject to 

argument. (Tr. July 10, 2000 at 34–35); see, e.g., Claim 3, supra. However, counsel 

had not said the same of the photographs. Moreover, there was no scientific 

evidence that Gunnel was attacked in her bedroom; none of the State’s experts gave 

any such testimony at the guilt phase. (Tr. July 12, 2000 at 104–41; Tr. July 13, 

2000 at 93–107; Tr. July 14, 2000 at 4–61.) Rather, Powell told the jury, “Let’s all 

be blood spatter experts for a little bit now, okay.” (Tr. July 19, 2000 at 28.) Powell 

misled the jurors, insinuating that the State’s theory of the crime and the “physical 

evidence” had the same credibility as the testimony given by experts on forensic 

evidence. 

 Compounding the mischaracterizations of evidence, Powell made comments 

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intended to inflame the jury. For example, he announced that Gunnel had “savage 

wounds” on her; the wound on her face was “ungodly.” (Tr. July 19, 2000 at 28.) 

He also made speculative and inflammatory comments during his rebuttal 

argument, surmising that Kiles’s thought process must have been, “I guess since 

we’re killing one we may as well kill them all. Let’s kill the whole family. Let’s 

kill two generations.” (Tr. July 19, 2000 at 77.) 

 Finally, in his closing statement of the guilt-phase proceeding, Powell told 

the jury: “The [S]tate maintains to you, ladies and gentlemen, never has a case 

exhibited more premeditation than the one we exhibit now.” (Tr. July 19, 2000 at 

36–37.) Powell’s comments created prejudicial error as they constituted personal 

and institutional guarantees of trustworthiness of the government and its case. See 

Smith, 962 F.2d at 933. 

 The purpose of a closing argument “is to explain to the jury what it has to 

decide and what evidence is relevant to its decision.” Sandoval v. Calderon, 241 

F.3d 765, 776 (9th Cir. 2000). Instead of offering relevant evidence, Powell gave 

the jury extraneous information about this case by comparing it to other government 

cases—information that the jury could not consider in its deliberations. See Fields 

v. Brown, 503 F.3d 755, 779 (9th Cir. 2007) (holding that “evidence developed 

against a defendant must come from the witness stand”). This was improper and 

prejudicial. See Darden, 477 U.S. at 180–81; Smith, 962 F.2d at 933; Robledo-Vela, 

45 F. App’x at 568; Zapata, 788 F.3d at 1113–14. 

2. The prosecutor mischaracterized the scientific evidence 

during the guilt phase. 

In his opening statement in the guilt-phase proceeding, Powell also misled 

the jury in a different way, by misrepresenting what the scientific evidence in 

Kiles’s case could prove. Powell stated that DNA could show the “chronology of 

what happened inside [Gunnel’s] apartment” and “it’s going to prove to you what 

the defendant did, that he killed three people.” (Tr. July 10, 2000 at 16–17.) But 

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DNA testing can do neither of those things. In this case, it was used to determine 

whether an “individual can be the source of this stain” of blood taken from the crime 

scene. (Tr. July 12, 2000 at 112–13.) The State’s expert described it as “a simple 

pattern comparison”—either an individual likely was the source of a blood sample 

or likely was not—and nothing more. (Tr. July 12, 2000 at 112–13.) Still, Powell 

attempted to falsely ascribe forensic certainty to the State’s theory. See United 

States v. Ruiz, 710 F.3d 1077, 1085 (9th Cir. 2013) (holding that improper vouching 

includes “suggesting that information not presented to the jury supports the 

witness’s testimony”); see also United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 

1992) (holding that a prosecutor “has no business telling the jury his individual 

impressions of the evidence”). 

 Powell also misled the jury as to what the blood-spatter expert, Tom Bevel, 

could tell them when he testified at trial. Powell told them that Bevel would tell the 

jury “what happened in that west bedroom to those two children.” (Tr. July 10, 2000 

at 20.) Blood-spatter science is an inexact one, and while it can perhaps provide 

background on how blood evidence came to be in a crime scene, like DNA it cannot 

tell the jury who did the crime or how the crime happened. (Tr. July 12, 2000 at 

112–13.) 

 Powell’s repeated insistence that the scientific and forensic evidence given 

at trial supported the State’s theory of the crime was misleading. Powell tried to 

stamp the State’s theory of the crime with the imprimatur of scientific certainty (see 

Tr. July 10, 2000 at 16–17), and, in doing so, committed misconduct. 

3. The prosecutor improperly testified on the record during 

the guilt phase. 

 Powell improperly put his own testimony on the record when questioning 

witnesses. In one example, when Powell was questioning a witness for the State 

about statements made by Kiles, Powell asked leading, testimonial questions: 

Q. Do you recall him saying anything about, Valerie just 

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went off on me. I had no choice in the matter. I had to beat 

her to death. 

A. No, sir, no, sir. 

Q. Did he tell you anything about, I’m really in a bind, I 

got three bodies I need to get rid of here? 

A. No, sir, no, sir. 

Q. Did he mention anything about the two guys that also 

helped him kill someone leaving him in a lurch? 

A. He didn’t mention nothing like that to me, sir. 

(Tr. July 10, 2000 at 173.) That Powell testified to the crime and how it was 

committed, rather than eliciting that testimony from the witness, was misconduct. 

While the jury was instructed before deliberations that “what the lawyers said is not 

evidence” (Tr. July 19, 2000 at 87), that charge was far from adequate to cure the 

State’s pattern of improper questioning. 

4. The prosecutor failed to disclose information on one of its 

witnesses. 

 Kiles’s arresting officer, Officer David Sherman, who testified for the State, 

had committed malfeasance by previously falsifying a urine test. The malfeasance 

was discovered prior to Kiles’s trial, and Sherman chose to retire rather than face 

disciplinary sanctions. 

 Under Brady v. Maryland, 373 U.S. 83 (1963), the State was required to 

disclose this impeachment information about Sherman to the defense. It is unclear 

whether this material was disclosed to defense counsel in a timely manner. Without 

this information, defense counsel was hindered from effectively impeaching 

Sherman. Any withholding of this or other impeachment material by the State 

constituted misconduct. See Brady, 373 U.S. at 90. 

5. The prosecutor improperly dehumanized the defendant in 

the guilt-phase closing. 

 “[P]resented with a criminal defendant, even well-meaning people fall prey 

to the stereotype that, whether for reason of biology or culture, Black people are 

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inherently violent and dangerous.” See Br. for the Nat’l Black Law Students Ass’n 

as Amicus Curiae in Support of Pet’r, Buck v. Davis, 137 S. Ct. 759 (2017) (No. 

15-8049), at 2. 

 Where the State could not support its narrative with evidence, it tried to draw 

on jurors’ implicit racial biases. The State improperly used the phrase “feeding 

frenzy” to dehumanize Kiles, an African-American man, and to invoke the racial 

stereotype of African-American men as dangerous and animalistic.

161 “By 

describing a defendant in animalistic terms, a prosecutor is improperly bringing 

race into the courtroom.” Shana Heller, Dehumanization and Implicit Bias: Why 

Courts Should Preclude References to Animal Imagery in Criminal Trials, 51 No. 

4 Crim. L. Bulletin ART 4 (Summer 2015). 

 Powell first used the term while cross-examining Kiles. Powell asked Kiles 

about Kale Johnson, another African-American male, and his involvement in the 

crime. Kiles testified that Johnson killed the children. Powell asked, “Was it like a 

feeding frenzy now?” Kiles answered, “I can’t answer for Kale Johnson. I can only 

answer for myself, sir.” (Tr. July 17, 2000 at 209.) 

 In closing, Powell repeatedly invoked this highly prejudicial phrase against 

Kiles. “[I]t’s gory, this feeding frenzy.” (Tr. July 19, 2000 at 30.) Powell went on 

to say “feeding frenzy was a word I generated, of course, because. . . . How else do 

you describe that?” (Tr. July 19, 2000 at 77.) In his attempt to portray Kiles as a 

hyper-violent predator, Powell told the jury that, when Kiles was beating the 

children, he was “just walking around, just making sure they were dead.” (Tr. July 

19, 2000 at 36.) Such statements were intended to play on the jury’s implicit biases 

about African-American men as dangerous and predatory. 

 

161 According to Merriam-Webster, a “feeding frenzy” is defined as “a wildly 

aggressive attack of prey by an animal or group of animals” or an “aggressive 

human activity likened to frenzied feeding by predatory animals.” MerriamWebster, Feeding Frenzy (Sept. 18, 2018), https://www.merriamwebster.com/dictionary/feeding%20frenzy. 

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 Studies have confirmed that implicit racial biases affect how jurors make 

determinations of guilt or innocence. See, e.g., Justin D. Levinson et al., Devaluing 

Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six 

Death Penalty States, 89 N.Y.U. L. Rev. 513, 563 (2014). Crucially, “jurors 

unknowingly misremember case facts in racially biased ways.” Justin D. Levinson, 

Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 

57 Duke L.J. 345 (2007). The State’s invoking of a racial stereotype to improperly 

influence the jurors’ determinations prejudiced Kiles and rendered his conviction 

unreliable. As the prosecutor’s conduct during the guilt phase both prejudiced 

Kiles’s substantive rights and rendered the trial fundamentally unfair, habeas relief 

is warranted. Donnelly, 416 U.S at 643. These errors individually and cumulatively 

caused prejudice. See Berger, 295 U.S. at 89 (granting a new trial because of 

“probable cumulative effect” of instances of prosecutorial misconduct). 

B. The prosecutor committed further misconduct in the penaltyphase proceedings. 

 The State’s misconduct continued during the penalty-phase proceeding, 

prejudicing Kiles. Kiles can again show that the prosecutor’s conduct both 

prejudiced his substantive rights and rendered the trial fundamentally unfair. See

Donnelly, 416 U.S. at 643; Berger, 295 U.S. at 78. 

1. The prosecutor improperly struck a juror on the basis of 

race during voir dire. 

 The State committed misconduct in using a peremptory strike to exclude an 

African-American prospective juror from the jury based on race. In Batson v. 

Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the use of peremptory 

challenges to strike jurors based on race violates the Equal Protection Clause. 

Kiles’s counsel’s notes indicate that there were four African-American prospective 

jurors of 142. Only one African-American person ultimately served on Kiles’s jury. 

(ROA 895.) The State used a peremptory strike to remove another AfricanCase 2:17-cv-04092-GMS Document 33 Filed 09/26/18 Page 351 of 500
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American person, Prospective Juror 96, without apparent cause. (ROA 895 at 4.) 

As discussed supra, Claim 4, nothing in the juror’s questionnaire evidenced a 

justification for the strike, and several white jurors who expressed similar 

discomfort with the death penalty (and who were comparable to Prospective Juror 

96 in other ways) were not struck. See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) 

(holding “[i]f a prosecutor’s proffered reason for striking a black panelist applies 

just as well to an otherwise-similar nonblack who is permitted to serve, that is 

evidence tending to prove purposeful discrimination”). Because the prosecutor’s 

race-based strike undermined the fairness of Kiles’s trial, the misconduct by the 

State prejudiced Kiles. Id.

2. The prosecutor improperly vouched for witnesses and 

evidence. 

 Powell’s opening statement at the aggravation phase of Kiles’s trial involved 

repeated improper vouching, “placing the prestige of the government behind a 

witness through personal assurances of the witness’s veracity, or suggesting that 

information not presented to the jury supports the witness’s testimony.” United 

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Powell told the jury he 

was going to prove the case through “good police work.” (Tr. Mar. 20, 2006 at 72.) 

He also vouched for the letter Hawkins had written, telling the jury it was 

“consistent with the physical evidence.” (Tr. Mar. 20, 2006 at 79.) But doing so was 

misconduct. See United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (“A 

prosecutor has no business telling the jury his individual impressions of the 

evidence.”). 

 In addition, in his opening, Powell repeatedly—and improperly—used the 

phrase “we know” to tell the jury what facts “we know” about the crime. (Tr. Mar. 

20, 2006 at 67–69, 71, 72, 73.) For instance, after listing several things “we know,” 

Powell told the jury, “We know this because the defendant admitted it to several 

people” (Tr. Mar. 20, 2006 at 68), though these admissions were contested by 

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witnesses at the guilt phase. (Tr. July 10, 2000 at 165–66; Tr. July 13, 2000 at 12; 

Tr. July 17, 2000 at 149; Tr. July 17, 2000 at 195–96.) The use of the phrase “we 

know” by a prosecutor blurs the line between improper vouching and legitimate 

summary. United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005). The Ninth 

Circuit has held that “we know” is only properly used if it is used “to marshal 

evidence actually admitted at trial and reasonable inferences from that evidence, 

not to vouch for witness veracity or suggest that evidence not produced would 

support a witness’s statements.” Id. In Kiles’s case, the State told the jury “we 

know” to establish the State’s theory of the crime before any evidence or witnesses 

had been introduced to the jury. It therefore amounted to misconduct. 

 Because of the improper vouching and argument in Powell’s opening at the 

aggravation phase, the defense moved for a mistrial. (Tr. Mar. 20, 2006 at 84–88.) 

As the prosecutor had the opportunity in the opening statement to set the stage for 

the rest of the penalty-phase proceeding, defense counsel argued it would be “hard 

to unring this bell.” (Tr. Mar. 20, 2006 at 87.) Despite recognizing that “Mr. Powell 

did cross the line in terms of arguing his case,” the trial court denied the motion, 

and the jury were left with the State’s insupportable theory framing the proceedings. 

(Tr. Mar. 20, 2006 at 91.) The court declined to issue a contemporaneous curative 

instruction (Tr. Mar. 20, 2006 at 91), and the State’s vouching went uncured, 

causing prejudice to Kiles. 

3. The prosecutor continued to advance an unsupported 

theory of the crime through improper questioning of expert 

witnesses. 

 Rather than eliciting testimony based on the facts of the crime, at the penalty 

phase Powell asked hypothetical questions of the State’s forensics experts in order 

to support his theory of the crime. As Powell’s hypotheticals were divorced from 

the evidence, this method of questioning was misleading to the jury. Powell 

questioned the medical examiner who autopsied Gunnel with such a hypothetical: 

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Q. Doctor, if the testimony in this case were that an assault 

took place on Valerie in one room and that she was knocked 

unconscious and that she later regained consciousness and 

walked into another room where the assault continued, 

would that mean to you that she was awake at the time? 

A. Well, she would have to be able to walk. 

Q. And that means the first blow would not have been the 

fatal blow? 

A. That’s correct. 

MR. POWELL: Nothing further. Thank you. 

(Tr. Mar. 21, 2006 at 34.) Of course, there was no such testimony in this case. 

 In similar fashion, Powell asked the State’s blood-spatter expert, Tom Bevel, 

to opine on hypotheticals outside of Bevel’s area of expertise to try to establish the 

State’s theory of the crime: 

Q. And have you learned from your studies and your 

experience, the type of force that is necessary to generate 

energy like that to cause a skull to fracture like that? 

MR. CLARK: Objection, judge. We don’t know if this is 

skull. We don’t know what it is. 

MR. POWELL: If we were to assume this is skull? 

THE COURT: Objection is overruled. 

THE WITNESS: And I’m sorry. What was the question 

now? 

BY MR. POWELL: 

Q. The type of force that would need to be generated to 

create a fracture so that bone would break off the skull? 

A. It was certainly forceful, yes, sir. 

(Tr. Mar. 27, 2006 at 68.) Beyond the unsupported hypothetical, Bevel was not a 

medical examiner or a forensic pathologist. That, however, did not stop Powell from 

trying to elicit testimony beyond the scope of Bevel’s expertise. See Cheney v. 

Washington, 614 F.3d 987, 996 n.4 (9th Cir. 2010) (holding that “prosecutorial 

misconduct may occur through the prosecutor’s own vouching remarks or when the 

prosecutor elicits vouching testimony from witnesses”). 

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 Finally, Powell misstated Kiles’s testimony to confirm the State’s 

allegations. As one example, while questioning a detective about Kiles’s arrest, 

Powell asked, “[W]e have a man who’s testified that he killed his girlfriend and her 

two children by beating them to death and there’s no blood on those shoes, correct?” 

(Tr. Apr. 3, 2006 at 130.) But Kiles had never testified that he had killed the 

children. (Tr. July 17, 2000 at 151–224.) Powell’s assertion was “calculated to 

mislead the jury,” undermining the integrity of the trial and prejudicing Kiles. See 

Berger, 295 U.S. at 85. 

4. The prosecutor used inflammatory language to influence the 

jury. 

 As he had done during the guilt phase, Powell improperly used inflammatory 

phrases during the penalty phase. He told the jurors they would see “ungodly 

amounts of blood” from Valerie’s murder. (Tr. Mar. 20, 2006 at 70.) He said that 

“as disturbing as that is,” Kiles then beat the girls, and “[h]e beat them so fiercely 

that one of his hands become [sic] raw, torn, and bloody.” (Tr. Mar. 20, 2006 at 70–

71.) In truth, the testimony had been that Kiles’s hand was “scratched up” (Tr. July 

17, 2000 at 223), and that Kiles had “a few scars on his hand” (Tr. July 10, 2000 at 

144–45). Powell called the crime scene “carnage.” (Tr. Mar. 20, 2006 at 71.) Powell 

used such language to inflame the jury and influence their deliberations. 

5. The prosecutor’s theory of the crime was not reasonably 

inferred from the evidence. 

 Once again, the State’s theory of the crime was not a reasonable inference 

based on the evidence presented at trial. See Hermanek, 289 F.3d at 1101. 

 Detective Brian Rodgers again testified at the penalty phase that there was 

no blood spatter or castoff in Gunnel’s bedroom to support the State’s theory. (Tr. 

Apr. 3, 2006 at 22.) Though there were individual bloody items found in Gunnel’s 

bedroom, Rodgers testified he believed they had been transferred there, as many of 

the items in the house were moved after the crime. (Tr. Apr. 3, 2006 at 99–100.) 

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Moreover, Rodgers was the only person to testify directly about the validity of the 

State’s theory. Rodgers, an experienced detective and lead investigator on Kiles’s 

case, opined, “I don’t think [Gunnel] was—after things started, I don’t think she 

ever made it to the east bedroom.” (Tr. Apr. 3, 2006 at 100.) 

 Even so, in his closing, Powell continued to assert the State’s fictional story 

of the crime by saying that “the physical evidence is very strong” that Gunnel “ran 

to the east bedroom. The defendant chased her there.” (Tr. May 22, 2006 at 64.) 

Gunnel’s death “had to be a long, drawn out fight.” (Tr. May 22, 2006 at 64.) These 

allegations were still almost wholly unsupported by the evidence and were far from 

a reasonable inference from the evidence. (Tr. July 12, 2000 at 104–41; Tr. July 13, 

2000 at 93–107; Tr. July 14, 2000 at 4–61; Tr. Mar. 21, 2006 at 4–34; Tr. Mar. 27, 

2006 at 11–141; Tr. Mar. 29, 2006 at 26–74.) They served only to influence the jury 

in its determination of Kiles’s sentence. 

 As the prosecutor’s penalty-phase misconduct both prejudiced Kiles’s 

substantive rights and rendered the trial fundamentally unfair, habeas relief is 

warranted. See Griffin, 380 U.S. at 623; Zapata, 788 F.3d at 1114–15; Hermanek, 

289 F.3d at 1101; Berger, 295 U.S. at 78. 

C. The prosecutor’s performance rendered the trial fundamentally 

unfair and violated Kiles’s substantive rights. 

 A prosecutor oversteps “the bounds of that propriety and fairness which 

should characterize the conduct of such an officer” when he, among other things, 

misstates facts in his cross-examination of witnesses, “put[s] into the mouths of 

such witnesses things which they had not said,” and assumes prejudicial facts not 

in evidence. Berger, 295 U.S. at 84. As the Supreme Court has acknowledged, “the 

average jury, in a greater or less degree, has confidence that these obligations . . . 

will be faithfully observed. Consequently, improper suggestions, insinuations, and, 

especially, assertions of personal knowledge are apt to carry much weight against 

the accused when they should properly carry none.” Id. at 88. 

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 The State committed each of these indiscretions, prejudicing Kiles. The 

cumulative effect of the State’s misconduct rendered Kiles’s proceedings unfair and 

violated his due-process rights. See Wood v. Ryan, 693 F.3d 1104, 1116 (9th Cir. 

2012) (explaining that “[e]ven when separately alleged incidents of prosecutorial 

misconduct do not independently rise to the level of reversible error, ‘[t]he 

cumulative effect of multiple errors can violate due process.’” (quoting United 

States v. Nobari, 574 F.3d 1065, 1082 (9th Cir. 2009))). The State’s misconduct

had a substantial and injurious effect on Kiles’s convictions and sentences. See 

Brecht, 507 U.S. at 623. Kiles is therefore entitled to habeas relief. 

Claim Ten 

Juror misconduct at Kiles’s guilt- and penalty-phase proceedings 

deprived Kiles of his rights to a fair and impartial jury, the 

assistance of counsel, confrontation, equal protection, and a fair 

trial. 

 Because of juror misconduct, Kiles was denied the right to be tried by a fair 

and impartial jury, and to a fair trial, among other rights, in violation of the Fifth, 

Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles 

incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

While this claim was not presented below, there was no adequate state-court 

mechanism for this claim to be heard previously. See 28 U.S.C. § 2254(b)(1)(B). 

Under Rule 32 of the Arizona Rules of Criminal Procedure, extra-record claims are 

appropriately brought in state post-conviction proceedings. See, e.g., Lambright v. 

Stewart, 241 F.3d 1201, 1203–04 (9th Cir. 2001) (explaining that Arizona courts 

required that claims needing factual development be raised in post-conviction relief 

proceedings rather than on direct appeal); State v. Blazak, 643 P.2d 694, 700 (Ariz. 

1982) (“The alleged misconduct of the county attorney and the extent of that alleged 

misconduct is better shown at a proper post-conviction hearing, at which time 

evidence may be taken to show the truth or falsity of defendant’s allegations.”); 

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State v. West, 845 P.2d 1097, 1102 (Ariz. Ct. App. 1992) (explaining that 

petitioner’s claims of prosecutorial misconduct “would require an evidentiary 

record that could be created through a petition for post-conviction relief pursuant 

to Rule 32, Arizona Rules of Criminal Procedure”).162 In this case, however, state 

post-conviction counsel were precluded by order from speaking to jurors. (ROA 

1056 at 1.) Because this claim has not been adjudicated by Arizona state courts, the 

limitations on relief imposed by 28 U.S.C. § 2254(d) do not restrict review, and the 

Court may consider the claim de novo.163 

 The Supreme Court has long held that “[t]he requirement that a jury’s verdict 

must be based upon the evidence developed at the trial goes to the fundamental 

integrity of all that is embraced in the constitutional concept of trial by jury.” Turner 

v. Louisiana, 379 U.S. 466, 472 (1965) (internal quotation marks omitted). The 

integrity of the jury is paramount, and “any ground of suspicion that the 

administration of justice has been interfered with” cannot be tolerated. Mattox v. 

United States, 146 U.S. 140, 149 (1892), superseded by rule as stated in PenaRodriguez v. Colorado, 137 S. Ct. 855 (2017). Additionally, “[i]t is vital in capital 

cases that the jury should pass upon the case free from external causes tending to 

disturb the exercise of deliberate and unbiased judgment.” Id.

 

162 Though the Arizona Supreme Court has recently stated that juror-misconduct 

claims are not appropriate for state post-conviction proceedings, this holding was 

not in effect at the time of Kiles’s trial, and the trial court and counsel could not 

have predicted this ruling. See, e.g., State v. Kolmann, 367 P.3d 61, 67 (Ariz. 2016) 

(holding that “[b]ecause claims of juror misconduct can be raised on post-trial 

motion under Rule 24, Kolmann generally is precluded from raising them in a 

petition for post-conviction relief. Ariz. R. Crim. P. 32.2(a)(1)”). If trial counsel 

should have raised this claim, then they were ineffective for failing to do so. State 

post-conviction counsel’s ineffectiveness excuses the default of the ineffectiveassistance-of-trial-counsel claim. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); 

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). 

163 Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

See Martinez, 566 U.S. at 9; Strickland, 466 U.S. at 688, 694. 

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 If a juror brings in extraneous evidence and introduces it to the jury, 

[A] defendant has effectively lost the rights of 

confrontation, cross-examination, and the assistance of 

counsel with regard to jury consideration of the extraneous 

evidence. In one sense the violation may be more serious 

than where these rights are denied at some other stage of 

the proceedings because the defendant may have no idea 

what new evidence has been considered. It is impossible to 

offer evidence to rebut it, to offer a curative instruction, to

discuss its significance in argument to the jury, or to take 

other tactical steps that might ameliorate its impact. 

Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980); see also Sassounian v. Roe, 

230 F.3d 1097, 1108 (9th Cir. 2000); Fields v. Brown, 503 F.3d 755, 779 (9th Cir. 

2007) (“[E]vidence developed against a defendant must come from the witness 

stand.”). 

 Moreover, misconduct need not have infected the entire jury. If even one 

juror has committed misconduct affecting his or her own deliberations, the 

defendant is denied the constitutional right to an impartial jury. Mach v. Stewart, 

137 F.3d 630, 633 (9th Cir. 1997). And because of the potential for prejudice, it is 

immaterial whether a juror or the jury admits that the extraneous information 

mattered to the ultimate decision, as “[t]estimony as to the subjective effects of 

extraneous information is outside the relevant scope of inquiry of a reviewing 

court.” Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citing United States 

v. Bagnariol, 665 F.2d 877 (9th Cir. 1981)). 

 Jurors in Kiles’s guilt- and penalty-phase proceedings variously considered 

extraneous evidence (including extraneous information regarding race), slept 

through portions of trial, and compromised or curtailed their deliberations because 

of an ill juror. Individually and cumulatively, these incidents of juror misconduct 

denied Kiles’s rights to due process, a fair trial, and a fair and impartial jury. 

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A. Jurors considered extraneous evidence at Kiles’s guilt-phase 

proceedings. 

 Upon information and belief, Kiles’s rights to due process, confrontation, and 

a fair and impartial jury, among others, were violated by the introduction of 

extraneous information into a juror’s deliberations. See generally Turner, 379 U.S. 

at 472. 

 The court admonished Kiles’s guilt-phase jury on multiple occasions to avoid 

media during the trial. Jurors were first admonished after being sworn in. The judge 

instructed the jurors to “avoid any reading of newspapers or watching TV news 

accounts and things like that during the trial, and if you do encounter something 

about this case in the news media during the trial we ask that you end your exposure 

to it immediately and also bring that to my attention through the court staff.” (Tr. 

July 7, 2000 at 183.) The judge reminded the jurors of the admonition continually 

throughout the proceedings. (See, e.g., Tr. July 7, 2000 at 82, 174; Tr. July 10, 2000 

at 83; Tr. July 11, 2000 at 63, 101, 177; Tr. July 12, 2000 at 94.) 

 Upon information and belief, at least one juror consistently ignored the 

admonition and read the newspaper every day during the trial. Given the pervasive 

news coverage of trial, the juror would have been exposed to extrinsic information 

about the case on which he was empaneled.164 Also upon information and belief, 

another juror was aware of the extraneous and prejudicial information that Kiles 

had previously been convicted for the crimes for which he was on trial. 

 The jury’s knowledge of and reliance upon extrinsic evidence violated 

Kiles’s constitutional rights to confrontation, due process, a fair trial, assistance of 

 

164 The media coverage of Kiles’s case was extensive. The defense’s petition for 

special action with the Arizona Supreme Court for a change of venue contained 

detailed information on the numerous news articles and extensive news coverage 

of the trial in Yuma. (Case No. CV-00-0143, Pet. for Special Action, May 5, 2000 

at 4–46.) Additionally, the Yuma Sun published information about Kiles’s prior 

trial and conviction after winning the right to do so based on First Amendment 

grounds. (ROA 491 at 3–8; Tr. July 7, 2000 at 9–14.) 

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counsel, and a fair and impartial jury. A jury’s verdict “must be based upon the 

evidence developed at the trial” to ensure the integrity of the constitutional right to 

trial by jury. Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Fields v. Brown, 

503 F.3d 755, 779 (9th Cir. 2007). In addition, bringing extrinsic facts into 

deliberations implicates the Confrontation Clause. Sassounian, 230 F.3d at 1108. 

Upon information and belief, these constitutional violations were not harmless 

errors; the extrinsic information had a “substantial and injurious effect or influence” 

in determining at least one juror’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 

623 (1993); Mach, 137 F.3d at 634. 

B. Jurors committed misconduct in multiple ways at Kiles’s penalty- phase proceeding. 

 Multiple jurors in Kiles’s case sought out and considered evidence 

extraneous to the proceedings, slept through trial, and considered incorrect and 

extraneous information about race during their deliberations. In addition, the jury 

compromised or curtailed deliberations due to the severe illness of one of the jurors. 

This violated Kiles’s rights to due process and a fair trial, among other rights. See 

Turner, 379 U.S. at 472. 

1. Jurors’ deliberations were informed by extraneous 

influences. 

 Once empaneled, the judge gave the jurors at Kiles’s penalty phase an 

admonition. The admonition stated, “Do not do any research or make any 

investigation about the case on your own.” (Tr. Mar. 20, 2006 at 54–55.) In addition, 

the judge instructed, “Do not talk to anyone about the case.” (Tr. Mar. 20, 2006 at 

55.) The jurors were again reminded of the admonition throughout the proceedings. 

(See, e.g., Tr. Mar. 20, 2006 at 160; Tr. Mar. 22, 2006 at 29; Tr. Mar. 27, 2006 at 

35, 142.) 

 However, upon information and belief, several jurors actively sought out 

extraneous information to assist in deliberations. This violated Kiles’s 

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constitutional rights to confrontation, assistance of counsel, and a fair and impartial 

jury. “Private communications, possibly prejudicial, between jurors and third 

persons . . . are absolutely forbidden, and invalidate the verdict, at least unless their 

harmlessness is made to appear.” Mattox, 146 U.S. at 150; see also Fields, 503 F.3d 

at 779 (“[E]vidence developed against a defendant must come from the witness 

stand.”). Jurors researched Kiles’s case—seeking out extraneous information—

because they were curious about information beyond what was being presented at 

trial. Especially given the extensive media coverage that had surrounded Kiles’s 

earlier proceedings, including his original trial and death sentences, this error was 

not harmless. See, e.g., Bulger v. McClay, 575 F.2d 407, 409, 412 (2d Cir. 1978) 

(affirming grant of habeas relief where one juror later admitted that he changed his 

vote after another juror discussed contents of a newspaper article during 

deliberations). 

 In addition, upon information and belief, one juror spoke to her husband, who 

was incarcerated at the time, to assess the credibility and accuracy of penalty-phase 

defense expert James Aiken. Aiken testified about the classification system in 

Arizona prisons; he further testified about Kiles’s history as a model prisoner. (See 

Tr. Apr. 27, 2006 at 4–54.) Aiken told the jury: 

Like I said, I have been in this business well over 30 years, 

and I have classified a lot of inmates, thousands and 

thousands of inmates. And they come in and they commit 

some type of violation. Some type of violation, whether it’s 

not tucking their shirt in or having a junkie room, and this 

is baffling. I mean, I don’t see one significant report in 

relationship to [Kiles’s] behavior while confined. And like 

I said, I have been doing this for many, many years. And 

counsel can tell you I had to go back through it and look 

through it and back through it and check and double-check, 

because I have never seen anything like this. 

(Tr. Apr. 27, 2006 at 32.) 

 However, after asking her husband about Aiken’s testimony, the juror then 

conveyed to the panel her husband’s opinion that Aiken’s testimony was not 

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credible—it was either an exaggeration or flatly inaccurate. This undermined the 

credibility of a defense expert during the mitigation stage of Kiles’s proceedings, 

and the defense had no opportunity to address or correct the information the jury 

received. See Gibson, 633 F.2d at 854; Sassounian, 230 F.3d at 1108. Moreover, 

jurors were in effect told, by what appeared to be a well-informed source, that a 

defense expert was lying. This also undercut the credibility of defense counsel and 

the entire defense mitigation presentation—including the other defense experts who 

formed the bulk of the defense case for leniency. Additionally, the extraneous 

information was singularly important, as it contradicted the defense’s argument that 

Kiles posed no future danger if sentenced to life in prison. Notably, future 

dangerousness is always a matter of significant concern for capital juries. See John 

H. Blume, Stephen P. Garvey & Sheri Lynn Johnson, Future Dangerousness in 

Capital Cases: Always “At Issue,” 86 Cornell L. Rev. 397, 410 (2001). If Aiken’s 

testimony was dismissed, jurors would have been more likely to consider the factor 

of Kiles’s potential for future violence in their vote for a death sentence. That the 

jury heard such extraneous information was prejudicial. Jeffries, 5 F.3d at 1191. 

 Given the importance of the mitigation phase of a capital trial, it is critical 

that the jurors charged with determining the appropriate punishment consider all of 

the mitigation evidence presented to them, without being influenced by information 

outside the proceedings. See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (“Given that 

the imposition of death by public authority is so profoundly different from all other 

penalties, we cannot avoid the conclusion that an individualized decision is 

essential in capital cases.”). Juror misconduct thus undermined the integrity of the 

deliberations, prejudicing Kiles. See Brecht, 507 U.S. at 623. 

2. Jurors slept through the proceedings. 

At least three jurors slept through various parts of Kiles’s aggravation phase. 

Defense counsel notified the court that Jurors 9, 11, and 13 were nodding off; Juror 

13 slept soundly enough that counsel “thought he was going to fall out of his chair 

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a couple times.” (Tr. Mar. 22, 2006 at 4.) The defense asked the record to reflect 

that, with respect to Jurors 11 and 13, “they have been continually nodding off.” 

(Tr. Mar. 22, 2006 at 4.) Juror 9 was “a newcomer to the sleep fest here.” (Tr. Mar. 

22, 2006 at 4.) The prosecutor confirmed that Juror 11 may have been sleeping; 

also, he (the prosecutor) and members of his team had seen Juror 13 sleep “on a 

pretty regular basis” for substantial periods of time. (Tr. Mar. 22, 2006 at 5–6.) 

While Juror 13 was made an alternate, Jurors 9 and 11 participated in deliberations. 

(Tr. Apr. 12, 2006 at 29–30.) 

 Given the importance of the penalty phase of a capital trial, the jurors charged 

with determining the appropriate punishment must hear and consider all of the 

evidence presented to them. See Lockett, 438 U.S. at 605; see also Eddings v. 

Oklahoma, 455 U.S. 104, 110 (1982). Prolonged juror inattentiveness in a criminal 

trial, especially a capital trial, jeopardizes the defendant’s Sixth, Eighth, and 

Fourteenth Amendment rights. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 

866 (2017). “A fair trial presupposes careful attention by the jurors to all of the 

testimony, and that both the court and counsel must do all in their power to ensure 

that jurors do not in fact sleep through any part of the proceedings.” Welch v. United 

States, 807 A.2d 596, 604 n.8 (D.C. 2002); see also United States v. Freitag, 230 

F.3d 1019, 1023 (7th Cir. 2000) (“If sleep by a juror makes it impossible for that 

juror to perform his or her duties or would otherwise deny the defendant a fair trial, 

the sleeping juror should be removed from the jury.”). 

 Here, as reflected on the record, jurors were seen sleeping during at least one 

day of the State’s presentation supporting the charged aggravators. Among other 

witnesses, these jurors missed the questioning of Imojean Kiles, who was a key 

witness testifying largely in Kiles’s favor. As neither the court nor counsel took 

affirmative steps to correct the jurors’ behavior (Tr. Mar. 22, 2006 at 6), it is likely 

that these and other jurors missed evidence and testimony that was important to 

their deliberations. 

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 Jurors sleeping through proceedings is not harmless conduct, especially 

given the law’s requirement of heightened reliability in capital cases. See United 

States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983); see also Romano v. 

Oklahoma, 512 U.S. 1, 20–21 (1994) (“[T]his Court’s Eighth Amendment 

jurisprudence instructs, capital sentencing procedures must be especially reliable” 

given the jury’s “awesome responsibility.”) (quoting Caldwell v. Mississippi, 472 

U.S. 320, 329 (1985)). This form of juror misconduct had a substantial and injurious 

effect on the outcome of Kiles’s capital sentencing. See Brecht, 507 U.S. at 623. 

3. Jurors improperly considered extraneous and incorrect 

information about race and criminality during their 

deliberations. 

Upon information and belief, the jury in Kiles’s penalty phase considered 

Kiles’s race, in the context of extraneous and incorrect information about African 

Americans, during their penalty-phase deliberations. This violated, among other 

rights, Kiles’s rights to a fair and impartial jury, equal protection, and a fair trial. 

 During the mitigation presentation, the defense called psychologist Mark 

Cunningham, Ph.D., to discuss the predictors of violence. (Tr. May 11, 2006 at 3.) 

Dr. Cunningham was asked to explain how broad historic and socio-cultural factors 

can affect individual decision-making. (Tr. May 11, 2006 at 10–22.) He told the 

jury that a study found that, “at any given point in time in Washington, D.C. or 

Baltimore, about half of the black males are in the criminal justice system.” (Tr. 

May 11, 2006 at 16.) Dr. Cunningham clarified that “[t]his is not about race. It isn’t 

being black that creates the issue.” However, he told the jury that the rate of 

homicide for black males was “[a]bout 30 times greater” than that of white males. 

(Tr. May 11, 2006 at 16–17.) 

 Unfortunately, Dr. Cunningham’s testimony supported racial stereotypes of 

black men as more dangerous and violent.165 Regardless of whether the testimony 

 

165 “[P]resented with a criminal defendant, even well-meaning people fall prey to 

the stereotype that, whether for reason of biology or culture, Black people are 

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was that black men are inherently more violent because of their race, or that black 

men end up more violent because of historic, economic, or socio-cultural factors, 

the jurors would have had the same takeaway: black men are more violent. 

 It was clear that race and criminality were on the jurors’ minds after Dr. 

Cunningham’s testimony. The jury submitted the following question to Dr. 

Cunningham: 

For your representative city regarding violent crime, you 

chose the District of Columbia. As D.C. is 99% Black and 

has the highest violent crime rate in the nation, is that an 

accurate comparison to a community like Yuma, AZ? 

According to Professor John Lott’s book “More Guns, Less 

Crime,” the disproportional rate of crime is due to the fact 

that D.C. has the strictest gun laws in the nation, rather than

socio-economic conditions. Does your comparison still 

apply regarding Yuma? 

(ROA 885 at 1.) The juror’s question, which was read in open court, introduced 

extraneous information about race and criminality, as well as about the expert’s 

credibility, into the proceedings. Particularly concerning is that it raised incorrect

extraneous information about race and criminality to determine the credibility of 

expert testimony. It was incorrect because (1) while exact numbers for 2006 are 

unknown, according to the U.S. Census, in 2000, D.C. was 60% black; by 2010 the 

black population had dropped to 51%,166 (2) in 2006, D.C. did not even make the 

top 25 most dangerous cities,167 and (3) John Lott’s scholarship has been 

 

inherently violent and dangerous.” See Br. for the Nat’l Black Law Students Ass’n 

as Amicus Curiae in Support of Pet’r, Buck v. Davis, 137 S. Ct. 759 (2017) (No. 

15-8049), at 2; see also Justin D. Levinson et al., Devaluing Death: An Empirical 

Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States, 89 N.Y.U. L. Rev. 513, 563 (2014). 

166 See United States Census Bureau, District of Columbia (last visited Sept. 19, 

2018), https://factfinder.census.gov/faces/nav/jsf/pages/communityfacts.xhtml? 

src=bkmk. 

167 See Les Christie, Top 25: Most Dangerous and Safest Cities, CNN Money (Oct. 

30, 2006), https://money.cnn.com/2006/10/30/realestate/Mostdangerouscities/ 

index.htm. 

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discredited.168

 Unfortunately, Dr. Cunningham’s reply could not correct the error—the juror 

had already entered extraneous information into the proceedings that both cast 

doubt on Dr. Cunningham’s testimony and explicitly linked race to criminality. And 

Dr. Cunningham’s reply did not address the juror’s erroneous information about 

race and crime rates in the District of Columbia. Indeed, the reply may have offered 

more support for the extraneous, incorrect information injected into the proceedings 

by even more explicitly connecting race and criminality.169 (Tr. May 11, 2006 at 

90–92.) 

 It is clear that jurors were considering race and racial stereotypes in relation 

to criminality and dangerousness, including extraneous information, during their 

deliberations. This was improper. “Permitting racial prejudice in the jury system 

damages ‘both the fact and the perception’ of the jury’s role as ‘a vital check against 

the wrongful exercise of power by the State.’” Pena-Rodriguez, 137 S. Ct. at 868 

(quoting Powers v. Ohio, 499 U.S. 400, 411 (1991)). 

 The juror’s introduction of incorrect information regarding the link between 

race and criminality into the proceedings constituted misconduct, and prejudiced 

Kiles. See Brecht, 507 U.S. at 637–38. 

4. Jurors curtailed their deliberations or compromised their 

votes because one member of the jury was gravely ill. 

Upon information and belief, the jurors at Kiles’s mitigation phase curtailed 

their deliberations, as one juror was gravely ill and was delaying cancer treatments 

 

168 See Emily Badger, More Guns, Less Crime? Not Exactly, The Washington Post 

(July 29, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/07/29/ 

more-guns-less-crime-not-exactly/. 

169 Dr. Cunningham responded to the question saying, “Nationwide, I think about 

14 percent of the population is African-American. And my recollection is that those 

individuals account for about half of the homicides, about three times the expected 

rate nationwide. . . . They’re killing their own.” (Tr. May 11, 2006 at 90–92); see

Claim 6, supra. 

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until a verdict was reached. Had the jury not rushed deliberations so that one of its 

members could receive medical treatment, there is a reasonable probability that 

Kiles would not have received a death sentence. Cf. United States v. Evanston, 651 

F.3d 1080, 1087–88 (9th Cir. 2011) (holding that outside influences being injected 

into the jury’s deliberative process raised the specter of jury coercion). 

 At Kiles’s mitigation phase, the jury was scheduled to deliberate for only two 

days, including one partial day. (ROA 888 at 1.) The schedule was set partly 

because one of the jurors had to begin a course of radiation and chemotherapy, 

which was set to last for six weeks. (ROA 888 at 1.) 

 The Arizona Constitution requires that “[t]he right of trial by jury shall 

remain inviolate. . . . In all criminal cases the unanimous consent of all the jurors 

shall be necessary to render a verdict.” Ariz. Const. art. II, § 23. Upon information 

and belief, some of the jurors were holding out for a life sentence for the killing of 

Gunnel. If they had not been rushed to reach a verdict to allow a juror necessary 

medical treatment, there is a reasonable probability the jury would not have been 

unanimous with respect to Gunnel’s death sentence. The jury’s compromised and 

curtailed deliberations prejudiced Kiles. See Brecht, 507 U.S. at 623. 

C. Juror misconduct throughout the course of proceedings violated 

Kiles’s right to due process and a fair trial. 

 The number of jurors affected by the misconduct “does not weigh heavily in 

the prejudice calculus for even a single juror’s improperly influenced vote deprives 

the defendant of an unprejudiced, unanimous verdict.” Lawson v. Borg, 60 F.3d 

608, 613 (9th Cir. 1995); see also Parker v. Gladden, 385 U.S. 363, 366 (1966) (a 

defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced 

jurors”). In Kiles’s case, these instances of misconduct demonstrate that jurors were 

improperly influenced in multiple ways, individually and cumulatively causing a 

substantial and injurious effect on the juries’ verdicts and rendering Kiles’s 

convictions and death sentence unreliable. See Brecht, 507 U.S. at 623. Kiles is 

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therefore entitled to relief. 

Claim Eleven 

Kiles’s appellate counsel failed to provide effective assistance. 

 Kiles was denied the effective assistance of appellate counsel in violation of 

the Sixth and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates 

by specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

 “Is it a violation of the ABA standards not to brief mitigation in an appellate 

case?” 

 The Arizona Supreme Court asked this question of Paul Mattern, Kiles’s 

counsel on direct appeal, during oral argument. Mattern had started his argument 

by apologizing for not briefing the issue of the court’s independent review.170

Mattern then spent the majority of his time before the court trying to argue a claim 

that was not cognizable on appeal: ineffective assistance of trial counsel. When one 

of the justices interrupted him to ask about his own failure to address a key issue in 

the case, Mattern had no answer. 

Kiles previously raised several aspects of this claim in his state postconviction proceedings. (ROA 1189 at 31–32, 61–69.) The state court denied these 

claims on the merits, saying that Kiles had not stated a colorable claim for relief. 

(ROA 1214 at 2.) The state court’s denial of these claims constituted an 

unreasonable application of or was contrary to clearly established federal law, 28 

U.S.C. § 2254(d)(1), and rested on an unreasonable determination of the facts, id.

§ 2254(d)(2). Accordingly, § 2254(d) places no limitation on relief, and this Court 

may review the exhausted sections de novo. 

 Parts B(4) through B(7) of this claim were not raised in Kiles’s state-court 

 

170 Because Kiles was convicted of a crime that occurred before August 1, 2002, by 

statute the Arizona Supreme Court was required to independently review Kiles’s 

death sentence. See State v. Grell, 291 P.3d 350, 351 (Ariz. 2013); A.R.S. 

§ 13-755(A)–(C) (Supp. 2008). 

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proceedings. Kiles alleges he can overcome any default by showing cause and 

prejudice, including because of the ineffective assistance of state post-conviction 

counsel. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Edwards v. Carpenter, 529 

U.S. 446, 453 (2000); Strickland v. Washington, 466 U.S. 668, 687–88 (1984); but 

see Davila v. Davis, 137 S. Ct. 2058 (2017). Kiles will demonstrate at an evidentiary 

hearing that post-conviction counsel’s performance fell below the standards of 

minimally competent capital attorneys and that counsel’s failures prejudiced him. 

Alternatively, Kiles alleges that any procedural bar is not adequate or independent 

and that imposing default would be a miscarriage of justice. 

Effective assistance of appellate counsel is guaranteed by the Due Process 

Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 396 (1985) 

(“A first appeal as of right . . . is not adjudicated in accord with due process of law 

if the appellant does not have the effective assistance of an attorney.”); see id. at 

395 (“Because the right to counsel is so fundamental to a fair trial, the Constitution 

cannot tolerate trials in which counsel, though present in name, is unable to assist 

the defendant to obtain a fair decision on the merits.”). As such, “nominal 

representation” during an appeal “does not suffice to render the proceedings 

constitutionally adequate.” Id. at 396. 

 Claims of ineffective assistance of appellate counsel are governed by the 

standard of review set forth in Strickland, 466 U.S. at 686–87. See Smith v. Robbins, 

528 U.S. 259, 285 (2000). Accordingly, Kiles must show that appellate counsel’s 

representation “fell below an objective standard of reasonableness,” Strickland, 466 

U.S. at 688, and that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different,” id.

at 694. In addition, the ABA Guidelines are instructive in evaluating the 

reasonableness of counsel’s conduct. See, e.g., Rompilla v. Beard, 545 U.S. 374, 

387 (2005). Regarding appellate counsel’s performance, the ABA Guidelines 

indicate that “counsel should seek to litigate all issues . . . that are arguably 

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meritorious[.]” 2003 ABA Guideline § 10.15.1(C). Therefore, when appellate 

counsel fails to raise a meritorious issue and there is a reasonable probability that 

such a challenge would have resulted in the reversal of a conviction or sentence, 

counsel has necessarily caused prejudice to the defendant. See, e.g., Strickland, 466 

U.S. at 694. Because he fixated on a claim he could not bring on direct appeal, 

Mattern failed to raise several viable claims. This failure prejudiced Kiles because, 

as described below, the claims Mattern failed to raise have merit. 

A. Appellate counsel focused his efforts on a claim that was not 

cognizable on appeal. 

Kiles’s appellate attorney unreasonably focused his investigation and 

briefing on a single claim: ineffective assistance of trial counsel. This narrow focus 

was inexplicable, because in Arizona ineffective-assistance claims—particularly 

those that depend on extra-record evidence—are not cognizable on appeal. In 

Arizona, it has been long established that claims about the ineffective assistance of 

trial counsel are properly brought in a state post-conviction petition. See Ariz. R. 

Crim. P. 32; e.g., State v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002). In fact, in Kiles’s 

case, the Arizona Supreme Court explained: 

Because we cannot consider facts outside the record, our 

consideration of ineffective assistance of counsel claims on 

direct appeal would rarely result in reversal. We caution 

that raising an argument such as this on direct appeal gains 

very little, but risks a great deal, as the defendant who asks 

this Court to determine issues of ineffectiveness on the 

appellate record faces the possibility of later preclusion. 

State v. Kiles, 213 P.3d 174, 183–84 (Ariz. 2009) (citing Ariz. R. Crim. P. 32.2(a)(2) 

(“A defendant shall be precluded from relief under this rule based upon any ground 

. . . [f]inally adjudicated on the merits on appeal or in any previous collateral 

proceeding. . . .”)). Despite the clear, then-existing authority to the contrary, 

Mattern nevertheless pursued an ineffective-assistance claim during the appeal, to 

Kiles’s detriment. 

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Mattern was appointed as Kiles’s attorney on direct appeal on June 21, 2006. 

(ROA 931 at 1.) Kiles was Mattern’s first capital appellate client, and Mattern made 

many critical mistakes. The first was in building an inappropriate relationship with 

Kiles that revolved around the ineffective assistance of Kiles’s trial counsel, which, 

as explained above, Mattern could not properly bring as a claim on direct appeal. 

 Mattern’s correspondence with Kiles was filled with foul language, diatribes 

against courts, lawyers, and the justice system, and a fixation specifically on Kiles’s 

prior counsel, Clark and VanDreumel. Kiles was particularly vulnerable, having 

just been sentenced to death for a second time, and Mattern’s correspondence was 

often unprofessional. Mattern promised he would risk financial ruin, his reputation, 

and even his health in his crusade to defend Kiles. By Mattern’s second letter to 

Kiles, his focus on Clark was evident. Mattern acknowledged to Kiles that 

information about Clark’s ineffectiveness would not legally assist Kiles in his 

appeal, but Mattern nonetheless told Kiles that he was going to follow that lead. 

 Mattern did not direct his efforts toward reviewing the record for claims that 

were appropriate to bring on appeal. See Kiles, 213 P.3d at 183. Instead, Mattern 

investigated Clark and VanDreumel, drafted complaints about Clark for Kiles to 

file with the State Bar, and spent considerable time trying to obtain extra-record 

materials from VanDreumel that could not be submitted to support claims in Kiles’s 

direct appeal. Mattern’s insistence on obtaining records from VanDreumel that 

could not be cited in his appeal was finally resolved by court order, only a month 

before Mattern’s opening brief was initially due. (ROA 1016 at 1–2.) Though 

Mattern gained the ability to access files best left for state post-conviction 

proceedings, he wasted time that he could have spent identifying, researching, and 

presenting cognizable and meritorious claims. 

Kiles’s opening brief on appeal was filed on July 14, 2008. (DA2 Dkt. 86.) 

The brief was 97 pages long, but the statement and facts of the case comprised a 

full 42 pages of the brief, most of which were irrelevant to the legal claims raised 

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therein. As noted by the Arizona Supreme Court during argument, Mattern failed 

in his remaining pages to argue that mitigation in Kiles’s case was compelling 

enough to warrant leniency.171 Of the pages remaining for substantive legal 

arguments, Mattern devoted nearly half to the non-cognizable ineffectiveassistance-of-counsel claim. (DA2 Dkt. 86 at 66–84.) 

Mattern’s singular focus on the ineffective-assistance claim was not 

“reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. 

Although defense counsel has broad discretion when making strategic decisions, 

those decisions must be reasonable and informed. Id. at 691; see also Correll v. 

Ryan, 539 F.3d 938, 949 (9th Cir. 2008) (holding that an “uninformed strategy” is 

“no strategy at all”). In fact, the Arizona Supreme Court stated that, as the 

ineffective-assistance claim was improvidently raised, it would not consider the 

merits of the argument. Kiles, 213 P.3d at 183–84. Focusing one’s effort on a claim 

that the appellate court predictably finds was improvidently raised does not amount 

to reasonable professional judgment. 

As justification for pursuing his non-cognizable claim, Mattern repeatedly 

invoked the 2003 ABA Guidelines, which state that appellate counsel should “make 

every professionally appropriate effort to present issues in a manner that will 

preserve them for subsequent review.” 2003 ABA Guideline 10.15.1(C). Had the 

Arizona Supreme Court decided to rule on the merits of the ineffectiveness claims 

 

171 This failure is particularly striking in that the Arizona Supreme Court had 

repeatedly addressed similar failures in opinions issued before the brief in this case 

was filed. State v. Andriano, 161 P.3d 540, 554 n.11 (Ariz. 2007) (“Andriano did 

not argue why the Court should find in its independent review that the mitigating 

circumstances were ‘sufficiently substantial to call for leniency.’ A.R.S. 

§ 13-703(E). Counsel in capital cases ‘should take advantage of all appropriate 

opportunities to argue why death is not suitable punishment for their particular 

client.’ ABA Guidelines for the Appointment and Performance of Defense Counsel 

in Death Penalty Cases Guideline 10.11(L) (2003).”); see also State v. Garza, 163 

P.3d 1006, 1021 n.16 (Ariz. 2007) (same); State v. Morris, 160 P.3d 203, 219 n.10 

(Ariz. 2007) (same). 

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as raised, Kiles would then have been precluded from raising them in his state postconviction proceedings, when he would have had the opportunity to investigate, 

develop, and present extra-record evidence in support of his claims. Rather than 

preserving issues for subsequent review, Mattern risked forfeiting Kiles’s chance 

to raise the claims in a procedurally appropriate manner. 

That this singular focus on a non-cognizable claim worked to the detriment 

of raising meritorious claims was clear at oral argument. Mattern spent all of his 

available time at argument either addressing the issue he acknowledged he failed to 

raise—the Arizona Supreme Court’s independent review—or arguing with the 

justices about his decision to inappropriately bring an ineffective-assistance-ofcounsel claim on direct appeal. Several cognizable issues that required appellate 

review in Kiles’s case therefore went un-briefed and un-argued. 

B. Appellate counsel was ineffective for failing to raise meritorious 

claims. 

Because Mattern was so focused on bringing a non-cognizable claim on 

direct appeal, he failed to identify and properly brief important appellate issues that 

were apparent from the record. If Kiles had had competent appellate counsel, there 

is a reasonable probability he would have had his conviction or death sentence 

reversed. See Strickland, 466 U.S. at 694. 

1. Appellate counsel failed to challenge the child-abuse 

convictions. 

Mattern stated in his opening brief that his challenges were limited to the 

premeditated murder of Valerie Gunnel and the imposition of the death sentence 

for her murder. (DA2 Dkt. 86 at 2.) Therefore, he neglected to bring the meritorious 

claim that Kiles’s child-abuse convictions should have been dismissed by the court. 

Kiles was indicted on first-degree premeditated murder charges for LeCresha 

Kirklin and Shemaeah Gunnel; the State charged him in the alternative with felony 

murder, based upon the predicate felony of child abuse. (ROA 1 at 2.) Before 

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Kiles’s guilt-phase proceedings, defense counsel submitted a pretrial motion to 

dismiss the child-abuse charges pursuant to State v. Styers, 865 P.2d 765 (1993). 

(ROA 443 at 3–6.) Styers held that a separate child-abuse conviction cannot stand 

in a case where the premeditated murder of the child is the abuse alleged in a 

separate count. The Arizona Supreme Court made it clear that child abuse may still 

be a predicate felony for felony murder where the abuse results in the death of the 

child. This, however, is at odds with premeditated murder, where a person 

knowingly or intentionally causes the death of another. “Although felony murder is 

first degree murder, it is arrived at differently than premeditated murder.” Styers, 

865 P.2d at 772. One cannot be guilty of murder for the death of a child as the result 

of intentional child abuse, where the only act of child abuse is the premeditated 

murder of the child. 

The Arizona Supreme Court’s holding in Styers emphasized the fact that the 

defendant had been convicted of premeditated murder. Any assault on a child 

during a premeditated murder of that child necessarily merged with the murderous 

assault. “If a defendant cannot be convicted for an aggravated assault that 

necessarily occurs when there is a premeditated murder, it logically follows that he 

also cannot be convicted for an intentional child abuse that necessarily occurs where 

there is a premeditated murder of a child victim.” Styers, 865 P.2d at 771. 

Kiles’s counsel argued this issue multiple times at trial, including in a pretrial 

motion requesting that the child-abuse charges be struck. (ROA 443 at 3–6.) The 

State responded that Kiles’s motion was premature. (ROA 444 at 2.) There was no 

argument on the issue before trial. After the State rested its case, however, defense 

counsel moved for a directed verdict on the two counts each of child abuse and 

felony murder based on the holding in Styers. (Tr. July 17, 2000 at 109–25; Tr. July 

18, 2000 at 3–11.) Defense counsel urged that the State had failed to support a 

felony-murder charge, as it had presented no evidence that the deaths of the children 

were in “furtherance” of the alleged child abuse. (Tr. July 17, 2000 at 113–14.) The 

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court denied the motion as premature, saying, “[W]e can vacate some of the verdicts 

if that’s what needs to be done, but I think I mostly agree with Mr. Powell that this 

is a jury question to determine what happened and it is premature at this present 

point for me to take anything from the jury.” (Tr. July 17, 2000 at 125.) 

The jury verdict, however, made the issue ripe, as some guilt-phase jurors 

found Kiles guilty of premeditated murder of the children and also guilty of child 

abuse. (ROA 482 at 5–8.) That even one juror so found invalidated the child-abuse 

verdicts. The defense thus renewed its motion to have the felony-murder and childabuse convictions vacated. (ROA 488 at 2–8.) Despite Arizona Supreme Court 

precedent, the trial court said that, while the defense had raised “interesting issues,” 

it would not vacate the child-abuse verdicts. (Tr. Dec. 29, 2000 at 19–20.) 

The trial court’s decision to allow the child-abuse convictions to stand, 

despite the findings of premeditated murder, was in error and was ripe for appellate 

review.172 Mattern should have been on notice of the issue, given the concerted 

efforts of trial counsel during Kiles’s proceedings. Trial counsel raised the issue in 

motions practice (ROA 443 at 3–6), requested a directed verdict (Tr. July 17, 2000 

at 109–25; Tr. July 18, 2000 at 3–11), filed a motion for judgment of acquittal on 

the child-abuse charges (ROA 488 at 1–8), included the issue in a motion for new 

trial (ROA 500 at 17–18), and presented the issue at argument (Tr. Dec. 29, 2000 

at 2–12). Moreover, the trial court’s suggestion that the issue could be addressed at 

a later time “if that’s what needs to be done” should have alerted Mattern to its 

suitability for appellate review. 

Mattern failed to challenge this issue, despite the likelihood of a successful 

challenge, given the clear precedent on the same issue and near-identical facts. The 

Arizona Supreme Court had explicitly said, “The first degree murder statute, A.R.S. 

§ 13-1105(A)(l), not the child abuse statute, applies when a person intentionally 

 

172 While Mattern could also have challenged the felony-murder convictions under 

Styers, Kiles is not challenging those convictions at this time. 

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kills a child victim.” Styers, 865 P.2d at 772 (emphasis added). In failing to 

challenge the trial court’s error that disregarded that holding, Mattern provided 

ineffective assistance, and Kiles was thereby prejudiced. See Evitts, 469 U.S. at 

396; Strickland, 466 U.S. at 694. 

2. Appellate counsel failed to challenge the trial court’s denial 

of a mistrial due to prosecutorial misconduct. 

Mattern also failed to challenge in his direct appeal the improper 

prosecutorial opening argument during the aggravation phase of Kiles’s trial. (ROA 

1189 at 62.) 

After the State’s opening statement in the aggravation phase, the defense 

moved for a mistrial. (Tr. Mar. 30, 2006 at 84–88.) Prosecutor Powell’s opening 

statement repeatedly commented on the evidence, told the jurors to be prepared for 

“ungodly amounts of blood,” improperly vouched for witnesses and evidence by 

repeating phrases like “we know” and “I believe,” and improperly misstated Kiles’s 

former testimony. (Tr. Mar. 30, 2006 at 84–88.) Kiles’s defense counsel stated that 

the remarks hamstrung the defense from the beginning. When Powell, as a 

representative of the State, commented on evidence or vouched for witnesses, 

Kiles’s counsel asked the court, “I mean, how are we going to confront that?” (Tr. 

Mar. 30, 2006 at 91.) The court agreed that “to some extent Mr. Powell did cross 

the line in terms of arguing his case,” but denied the motion for a mistrial.173 (Tr. 

Mar. 30, 2006 at 91); see Claim 8, supra. 

Mattern was deficient in failing to challenge on appeal the judge’s denial of 

the mistrial. This failure prejudiced Kiles, as there was a reasonable probability that 

the trial-court error claim before the Arizona Supreme Court would have prevailed. 

In Arizona, a conviction may be reversed on appeal for prosecutorial misconduct if 

“(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the 

 

173 Relatedly, the trial court’s error in denying the motion for mistrial violated 

Kiles’s constitutional rights to due process and a fair trial. 

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misconduct could have affected the jury’s verdict, thereby denying [the] defendant 

a fair trial.” State v. Gallardo, 242 P.3d 159, 167 (2010) (quoting State v. Velazquez, 

166 P.3d 91, 102 (Ariz. 2007)). If the defendant objects, the trial court’s 

determination is reviewed for harmless error. Id. 

In Kiles’s case, the prosecutor’s opening statement contained pervasive 

improper vouching, “placing the prestige of the government behind a witness 

through personal assurances of the witness’s veracity, or suggesting that 

information not presented to the jury supports the witness’s testimony.” United 

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993); see also United States v. 

Younger, 398 F.3d 1179, 1191 (9th Cir. 2005) (recognizing that the use of the phrase 

“we know” by a prosecutor blurs the line between improper vouching and 

legitimate summary). The Ninth Circuit has held that “we know” is only properly 

used if it is used to “to marshal evidence actually admitted at trial and reasonable 

inferences from that evidence, not to vouch for witness veracity or suggest that 

evidence not produced would support a witness’s statements.” Younger, 398 F.3d 

at 1191. In Kiles’s case, where “we know” was used by the State before any 

evidence or witnesses had even been introduced to the jury, it amounted to 

prosecutorial misconduct. 

Additionally, in his opening statement, Powell repeatedly and improperly 

conveyed his personal beliefs about the credibility of the witnesses. (Tr. Mar. 20, 

2006 at 72, 79); State v. Lamar, 72 P.3d 831, 841 (Ariz. 2003) (“A prosecutor must 

not convey his personal belief about the credibility of a witness.”). And as the 

prosecutor had set the stage for the rest of the penalty-phase proceeding, defense 

counsel argued it would be “hard to unring that bell.” (Tr. Mar. 20, 2006 at 87.) 

Given the extent of the prosecutor’s misconduct, there is a reasonable likelihood 

that the conduct denied Kiles a fair trial, and the trial court’s error was not harmless. 

There was no reasonable strategy for Mattern to fail to raise this claim on 

appeal. However, Mattern’s opening brief contained only one brief reference to 

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prosecutorial misconduct. (DA2 Dkt. 86 at 47.) His reply brief attempted to raise, 

for the first time, an additional nine arguments in support of the prosecutorial 

misconduct claim. (ROA 1189 at 64–65.) But having failed to raise the arguments 

in his opening brief, Mattern had waived them. See State v. Aleman, 109 P.3d 571, 

575 (Ariz. Ct. App. 2005) (holding issues raised for first time in reply brief untimely 

and may be disregarded by court); see also State v. Carver, 771 P.2d 1382, 1390 

(Ariz. 1989) (stating “opening briefs must present significant arguments, supported 

by authority, setting forth an appellant’s position on the issues raised”). 

Because of Mattern’s deficient performance, the appellate court was denied 

the ability to assess the cumulative impact of repeated instances of prosecutorial 

misconduct on the jury’s verdict. (ROA 1189 at 64–65.) A pattern of pervasive 

misconduct was reasonably likely to have affected the outcome of the trial. “[E]ven 

if there [is] no error or an error [is] harmless and so by itself does not warrant 

reversal, an incident may nonetheless contribute to a finding of persistent and 

pervasive misconduct if the cumulative effect of the incidents shows that the 

prosecutor intentionally engaged in improper conduct and ‘did so with indifference, 

if not a specific intent, to prejudice the defendant.’” State v. Morris, 160 P.3d 203, 

214 (Ariz. 2007) (quoting State v. Roque, 141 P.3d 368, 403 (Ariz. 2006)). 

Mattern’s failure to preserve arguments for appellate review fell short of the 

standards of reasonableness required for appellate counsel. See ABA Guideline 

10.15.1(C). 

When appellate counsel fails to raise meritorious issues that could have 

resulted in a reversal of conviction or a sentence, counsel has necessarily caused 

prejudice to the defendant. There was a reasonable probability that the Arizona 

Supreme Court would have found that the trial court’s denial of a mistrial, as well 

as the pervasive prosecutorial misconduct, required reversal of Kiles’s sentence. 

Thus, Kiles was prejudiced due to his appellate counsel’s ineffective assistance. See 

Strickland, 466 U.S. at 694 (prejudice occurs when, absent counsel’s deficiencies, 

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there is a reasonable probability that the result of proceeding would have been 

different). 

3. Appellate counsel failed to adequately brief his challenge to 

the improperly admitted gruesome photographs. 

Mattern failed to adequately challenge inflammatory and unduly prejudicial 

photographs introduced as evidence during Kiles’s trial. 

Kiles’s opening brief on appeal objected to a number of gruesome 

photographs that were improperly introduced during the guilt-phase proceeding 

without objection by trial counsel.174 (DA2 Dkt 86 at 56.) While Mattern listed 

several exhibits that should not have been admitted, the Arizona Supreme Court 

held that the claim was inadequately briefed: “Kiles’ opening brief does not specify 

his objection to any but two of the challenged photographs. He has therefore waived 

any argument as to the other photographs.” Kiles, 213 P.3d at 183. The court found 

the two photographs that Mattern sufficiently objected to did not prejudice Kiles. 

This was due to Mattern’s failure to challenge the child abuse convictions. Id.

As a result of Mattern’s failure to provide reasoning for his challenges to all 

of the photographs, as well as his failure to challenge the child-abuse convictions, 

the trial court found that there was no prejudice to Kiles. Mattern’s deficient 

performance resulted in the waiver of claims regarding several inflammatory 

photographs. The 2003 ABA Guidelines state that appellate counsel are required to 

litigate all issues “that are arguably meritorious under the standards applicable to 

high quality defense representation,” as well as “make every professionally 

appropriate effort to present issues in a manner that will preserve them for 

subsequent review.” 2003 ABA Guideline 10.15.1(C). Mattern failed to do either. 

 

174 Defense counsel later tried to object to the photographs being introduced as 

evidence at the penalty phase, stating, “We didn’t litigate this prior to the guilt 

phase. And we never filed the motion to preclude photographs in the guilt phase. 

And, perhaps, that was an error of some magnitude on our part.” (Tr. Mar. 20, 2006 

at 35.) The court denied the motion. (Tr. Mar. 20, 2006 at 38.)

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Given Mattern’s failure to raise claims on appeal adequately to ensure effective 

review, the state post-conviction court’s holding that Mattern was not ineffective 

was an unreasonable application of both law and fact under § 2254(d). 

4. Appellate counsel failed to challenge the trial court’s error 

in allowing the State to question statements made to defense 

experts in a prior trial. 

Mattern failed to raise a claim that the trial court erred by letting the State 

cross-examine defense experts from Kiles’s previous trial regarding statements 

Kiles made to them in the course of that trial, when the verdicts from that trial were 

overturned due to the ineffective assistance of counsel. Although trial counsel 

objected to this line of cross-examination, the trial court overruled the objection. 

(Tr. May 8, 2006 at 54–55.) Mattern should have been on notice that this issue 

presented a claim ripe for appellate review, as the State explicitly said, “This is 

something that hasn’t been resolved yet. . . . It’s for the appellate courts to decide 

later.” (Tr. May 8, 2006 at 56.) Mattern’s unreasonable failure to recognize and 

allege this meritorious claim amounts to deficient performance. See Strickland, 466 

U.S. at 694.

Effective counsel would have brought a claim that the trial court improperly 

allowed the questioning based on an evidentiary ruling that was determined in a 

“never, neverland” where “the Rules of Evidence could not apply.” (Tr. May 8, 

2006 at 55.) Because Kiles’s prior statements to the experts directly undermined his 

counsel’s strategy at trial, there is a reasonable probability that their admission 

affected the outcome of his trial. Upon review, there is a reasonable probability that 

the Arizona Supreme Court would have recognized that allowing testimony to 

Kiles’s statements made in the course of a case that was overturned due to 

ineffective assistance of counsel would be unduly prejudicial in Kiles’s second trial. 

The mistakes of previous counsel, especially where those mistakes would not have 

been made but for previous counsel’s deficient performance, should not then be 

repeated. To allow the use of reports produced through the ineffectiveness of prior 

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counsel is to deny the curative value of a new trial. See Claim 8, supra. Thus, 

Mattern’s failure to challenge the admissibility of this line of cross-examination on 

appeal prejudiced Kiles. See Evitts, 469 U.S. at 396; Strickland, 466 U.S. at 694. 

5. Appellate counsel failed to present an argument for leniency 

on independent review by the Arizona Supreme Court. 

As stated above, for any capital murder committed before August 1, 2002, 

the Arizona Supreme Court was required to “independently review the propriety of 

the death sentence.” Grell, 291 P.3d at 351. The question in this independent review 

was “not whether the trial court properly imposed the death penalty, but whether, 

based upon the record before [the Arizona Supreme Court], we believe that the 

death penalty should be imposed.” State v. Trostle, 951 P.2d 869, 888 (Ariz. 1997) 

(quoting State v. Watson, 628 P.2d 943, 946 (Ariz. 1981)). 

By his own admission, Mattern failed to include argument in his opening 

brief regarding the Arizona Supreme Court’s independent review, the only issue on 

which Kiles was entitled to de novo review. When the justices asked Mattern at oral 

argument to address independent review, he was unprepared to discuss 

mitigation.175 And after argument, Mattern was ineffective in failing to challenge 

independent review in the motion for reconsideration, especially in light of his 

admission that he had neglected to adequately brief the issue. (DA2 Dkt. 118 at 1.) 

For a defendant, independent review was a second chance to argue his 

mitigation case—“something anathema in any other context.” State v. Stuard, 863 

P.2d 881, 902 (Ariz. 1993) (quoting State v. Salazar, 844 P.2d 566, 585 (Ariz. 1992) 

(Martone, J., specially concurring)). This second chance had proven successful for 

 

175 Though Mattern was able to identify some of the mitigation that was introduced 

at the penalty phase, he also argued that the guilty verdicts returned on the children 

in Kiles’s guilt phase were invalid based on the evidence presented. This was not 

an issue the Arizona Supreme Court could have considered in its independent 

review. Rather, the court must “independently review the aggravating and 

mitigating factors found by the trial court to ensure that they were properly 

determined and weighed.” State v. Fierro, 804 P.2d 72, 81 (Ariz. 1990).

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many defendants. The Arizona Supreme Court has overturned several death 

sentences based on its independent review of aggravating and mitigating 

circumstances. See, e.g., Grell, 291 P.3d at 351; Roque, 141 P.3d at 405–06; Trostle, 

951 P.2d at 888; Stuard, 863 P.2d at 902; State v. Herrera, 850 P.2d 100, 113 (Ariz. 

1993); State v. Jiménez, 799 P.2d 785, 801 (Ariz. 1990); State v. Rockwell, 775 P.2d 

1069, 1080 (Ariz. 1989); State v. Mauro, 766 P.2d 59, 81 (Ariz. 1988); State v. 

Valencia, 645 P.2d 239, 241 (Ariz. 1982); Watson, 628 P.2d at 947. 

The 2003 ABA Guidelines emphasize that capital counsel have a 

professional obligation to “take advantage of all appropriate opportunities to argue 

why death in not a suitable punishment” for their client. 2003 ABA Guideline 

10.11(L). Mattern failed to do so, offering no reasonable explanation at oral 

argument, instead stating: “I neglected to brief independent review. It’s my own 

fault entirely. I accept responsibility.” Cf. Correll, 539 F.3d at 949 (holding that an 

“uninformed strategy” is “no strategy at all”). 

If Mattern had briefed independent review, there is a reasonable likelihood 

the Arizona Supreme Court would not have ignored or mischaracterized the 

mitigation evidence when conducting its independent review. As laid out in greater 

detail in Claim 12, infra, the court failed to consider the majority of the 30 nonstatutory mitigators Kiles alleged at trial (Tr. May 22, 2006 at 19–21), claimed Kiles 

failed to prove two statutory mitigators when neither was alleged (Tr. May 22, 2006 

at 19–21), and discounted the extensive evidence presented that Kiles had an 

abusive childhood. Kiles, 213 P.3d at 189. 

Mattern may have offered to take responsibility, but it is Kiles who must bear 

the punishment due to Mattern’s deficient performance. Mattern squandered Kiles’s 

opportunity to have his death sentence reduced to life in prison, prejudicing Kiles. 

6. Appellate counsel failed to adequately challenge the (F)(2) 

aggravating circumstance. 

The State alleged the (F)(2) aggravator in the aggravation phase of Kiles’s 

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trial. The relevant version of the (F)(2) aggravator applies when a defendant “was 

previously convicted of a felony in the United States involving the use or threat of 

violence on another person.” (ROA 503 at 1 (quoting A.R.S. § 13-703(F)(2) 

(1988).) The State alleged that Kiles had committed two prior felonies that 

qualified—an attempted aggravated assault and an aggravated assault. Trial counsel 

challenged the attempted aggravated assault, claiming it did not qualify under 

(F)(2), but lost. Mattern then successfully challenged the attempted assault as a 

basis for the (F)(2) aggravator on appeal. See Kiles, 213 P.3d at 185–86. However, 

appellate counsel failed to challenge the use of Kiles’s aggravated assault as a basis 

for the (F)(2) aggravating circumstance. This failure was unreasonable, given that 

Mattern clearly realized that challenging the (F)(2) aggravator was a viable strategy. 

Mattern’s deficient performance prejudiced Kiles, because, as discussed supra, 

Claim 5, and infra, Claim 12, there is a reasonable likelihood the Arizona Supreme 

Court would have found that Kiles’s aggravated assault conviction did not support 

the (F)(2) aggravator and that the aggravator was therefore invalid. 

7. Appellate counsel failed to challenge Kiles’s shackling 

during his proceedings. 

Mattern failed to challenge the use of shackles and a stun belt, which Kiles 

was forced to wear throughout his proceedings. “[G]enerally, a criminal defendant 

has a constitutional right to appear before a jury free of shackles.” Gonzalez v. 

Pliler, 341 F.3d 897, 900 (9th Cir. 2003) (quoting Spain v. Rushen, 883 F.2d 712, 

716 (9th Cir. 1989) (citing Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir. 

1985)). The trial court failed to make a required finding that shackles and a stun 

belt were required, as discussed in Claims 3, 5, 7, and 8, supra. Had Mattern raised 

this claim, there is a reasonable likelihood it would have succeeded on appeal. Kiles 

was thus prejudiced. 

C. Conclusion. 

 Individually and cumulatively, these deficiencies constitute ineffective 

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assistance of appellate counsel. The state court’s determination that this claim was 

not colorable and did not warrant an evidentiary hearing constituted an 

unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), 

and an unreasonable determination of the facts, id. § 2254(d)(2). As to sections 

B(4)–B(7), the ineffective assistance of Kiles’s post-conviction counsel in failing 

to raise these parts of this claim constitutes cause for the default and resulted in 

prejudice to Kiles. See Martinez, 132 S. Ct. at 1320; but see Davila, 137 S. Ct. at 

2065. Kiles is therefore entitled to relief. 

Claim Twelve 

The Arizona Supreme Court’s decision affirming Kiles’s death 

sentence violated Kiles’s constitutional rights. 

The Arizona Supreme Court’s decision affirming Kiles’s death sentence 

violated Kiles’s rights under the Sixth, Eighth, and Fourteenth Amendments to the 

U.S. Constitution. Kiles hereby incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

This claim is exhausted, as the Arizona Supreme Court considered and ruled 

on its merits on direct appeal.176 See Kiles, 213 P.3d at 187–92. The state-court 

decision was an unreasonable application of, or contrary to, clearly established 

federal law, see 28 U.S.C. § 2254(d)(1), and an unreasonable determination of the 

facts, id. § 2254(d)(2). Accordingly, § 2254(d) places no limitation on relief, and 

this Court should review the claim de novo. 

 

176 To the extent this claim was not raised on direct appeal, it was still exhausted 

because “[e]ven if a petitioner fails to raise a constitutional claim in state court, the 

exhaustion requirement may be satisfied . . . where the state court itself exhausts 

the claim.” Comer v. Schriro, 480 F.3d 960, 981 (9th Cir. 2007). The Arizona 

Supreme Court did so in conducting its independent review. State v. Kiles, 213 P.3d 

174, 187 (Ariz. 2009). In the alternative, if any portion of this claim was found not 

to have been decided by the state court on the merits, the ineffective assistance of 

Kiles’s post-conviction counsel in failing to raise this claim constitutes cause for 

the default and resulted in prejudice to Kiles. See Martinez v. Ryan, 566 U.S. 1, 9 

(2012); Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). 

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In order to try to satisfy the heightened standard of reliability necessary in 

the death-penalty context, see Woodson v. North Carolina, 428 U.S. 280, 305 

(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), the U.S. Supreme Court 

has “emphasized repeatedly the crucial role of meaningful appellate review in 

ensuring that the death penalty is not imposed arbitrarily or irrationally.” Parker v. 

Dugger, 498 U.S. 308, 321 (1991); see also Zant v. Stephens, 462 U.S. 862, 890 

(1983) (“Our decision in this case depends in part on the existence of an important 

procedural safeguard, the mandatory appellate review of each death sentence by the 

Georgia Supreme Court to avoid arbitrariness and to assure proportionality.”). 

 As the purpose of appellate review is to ensure the constitutionality of a death 

sentence, the review must itself be constitutional. Cf. Clemons v. Mississippi, 494 

U.S. 738, 748–51 (1990) (evaluating constitutionality of appellate review). To that 

end, meaningful appellate review cannot lose sight of the fact that “[t]he primary 

concern in the Eighth Amendment context [is] that the sentencing decision be based 

on the facts and circumstances of the defendant, his background, and his crime.” Id.

at 748; cf. Smith v. Texas, 543 U.S. 37, 44–45 (2004) (rejecting state court’s reliance 

during appellate review on causal-nexus text that limited consideration of relevant 

mitigation). Moreover, the appellate review must not inject “arbitrar[iness] or 

irrational[ity]” into the sentencing process. Parker, 498 U.S. at 321. Finally, once 

a state has provided a mechanism for meaningful appellate review, it must follow 

its own laws regarding that mechanism; the failure to do so results in the denial of 

a liberty interest protected by the Due Process Clause of the Fourteenth 

Amendment. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (recognizing that 

the grant of a state-law procedural right to a criminal defendant at sentencing can 

give rise to a constitutionally protected liberty interest). 

The Arizona Supreme Court has defined its procedure for independent 

review: 

When a death sentence is imposed in Arizona, this court 

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independently reviews the entire record for error, 

determines whether the aggravating circumstances have 

been proved beyond a reasonable doubt, considers any 

mitigating circumstances, and then weighs the aggravating 

and mitigating circumstances in deciding whether there are 

mitigating circumstances sufficiently substantial to call for 

leniency. 

State v. Stokley, 898 P.2d 454, 465 (1995). The court has emphasized that 

independent review is broad: “We must [] conduct a de novo review of the trial 

court’s rulings concerning aggravation and mitigation, and then decide 

independently whether the death sentence should be imposed.” State v. Brewer, 826 

P.2d 783, 790–91 (Ariz. 1992). The court must “painstakingly examine the record 

to determine whether [the death penalty] has been erroneously imposed.” State v. 

Stuard, 863 P.2d 881, 897 (Ariz. 1993) (quoting State v. Richmond, 560 P.2d 41, 

51 (Ariz. 1976)). The Arizona Supreme Court itself has recognized that it must 

follow its own procedures: “we are bound by the gravity of the death penalty to 

insure proper compliance with Arizona’s death penalty statute.” Brewer, 826 P.2d 

at 790. 

In 2009, the Arizona Supreme Court conducted an independent review of 

Kiles’s death sentence under A.R.S. § 13-755(A)-(C). Kiles, 213 P.3d at 187. The 

manner in which the Arizona Supreme Court conducted its independent review 

violated Kiles’s constitutional rights by denying him meaningful appellate review 

and due process, in violation of the Sixth, Eighth, and Fourteenth Amendments. 

A. The Arizona Supreme Court violated Kiles’s due process rights in 

its review of the prior-conviction aggravating circumstance. 

The Arizona Supreme Court violated federal constitutional guarantees in its 

review of whether the (F)(2) aggravator had been properly found. 

1. The Arizona Supreme Court denied Kiles his right to due 

process in upholding the prior-conviction aggravating 

circumstance. 

The Arizona Supreme Court violated Kiles’s rights when it improperly 

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upheld the (F)(2)177 aggravating circumstance based upon Kiles’s 1986 conviction 

for aggravated assault, which was in fact not a valid basis for the circumstance. See

Claim 5, supra. 

The (F)(2) aggravating circumstance applies when the defendant was 

previously convicted of a felony in the United States “involving the use or threat of 

violence on another person.” A.R.S. § 13-703(F)(2) (1988). At the aggravation 

phase of trial, the jury found the (F)(2) aggravator proven based on two prior 

offenses, an aggravated assault under A.R.S. § 13-1204(A)(8) and § 13-1203, and 

an attempted aggravated assault under A.R.S. § 13-1001(A). Kiles, 213 P.3d at 185; 

(see also ROA 879 at 5–6). 

In its decision, the Arizona Supreme Court correctly held that Kiles’s prior 

attempted aggravated assault could not establish the (F)(2) aggravator, as by the 

crime’s statutory definition it could have been committed without the use or threat 

of violence. Kiles, 213 P.3d at 185–86 (citing State v. McCray, 183 P.3d 503, 508 

(Ariz. 2008)); see also State v. Williams, 904 P.2d 437, 451 (Ariz. 1995). 

However, the court did not review whether this same reasoning applied to 

the aggravated assault conviction. The court had a duty to do so as part of its 

established independent review procedure. The court addressed the (F)(2) 

aggravator twice in its decision: first in part (III)(A), and again as part of its 

independent review in part (IV). Kiles, 213 P.3d at 185, 187–88. In each instance, 

the court summarily assumed that Kiles’s aggravated assault conviction satisfied 

(F)(2). However, A.R.S. § 13-1204(A)(8) does not by its statutory definition 

necessarily involve the mens rea necessary to establish the use or threat of violence. 

Nor does the general assault statute. See Claim 5, supra. 

Prior to its review of Kiles’s case, the Arizona Supreme Court had analyzed 

 

177 As noted supra, Claim 5, the text of the (F)(2) aggravating circumstance was 

changed in 1993. State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000). The pre-1993 

version of the aggravating circumstance applies to Kiles’s case. 

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the (F)(2) aggravating circumstance applicable here (i.e., the pre-1993 version), 

which requires the use or threat of violence, and had found it was not supported by 

a prior conviction for aggravated assault. See, e.g., State v. Walden, 905 P.2d 974, 

996 (Ariz. 1995) (holding that aggravated assault did not provide basis for (F)(2) 

aggravating circumstance when it could have been committed recklessly), 

overruled on other grounds by State v. Ives, 927 P.2d 762 (Ariz. 1996); State v. 

McKinney, 917 P.2d 1214, 1230 (Ariz. 1996) (holding that “because [the 

defendant’s] prior conviction was for a crime that, on the face of the statute, might 

have been committed recklessly, it does not qualify as a crime of violence” for the 

purposes of the former (F)(2) aggravating circumstance); State v. Schackart, 947 

P.2d 315, 323 (Ariz. 1997). Thus the Arizona Supreme Court should have similarly 

struck the (F)(2) aggravator in Kiles’s case, as neither the conviction for aggravated 

assault nor the conviction for attempted aggravated assault were sufficient to prove 

the (F)(2) aggravator under the version of the statute applicable in this case. 

The Eighth Amendment requires capital sentencing to meet exacting 

standards. “The fundamental respect for humanity underlying the Eighth 

Amendment’s prohibition against cruel and unusual punishment gives rise to a 

special ‘need for reliability in the determination that death is the appropriate 

punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S. 578, 584 (1988) 

(quoting Gardner v. Florida, 430 U.S. 349, 363–64 (1977) (White, J., concurring 

in judgment)). Further, capital sentencing must be individualized. Clemons, 494 

U.S. at 748. Such reliable, individualized sentencing does not occur when a death 

sentence is imposed based in part on an invalid aggravating factor. See Johnson, 

486 U.S. at 585. 

The Eighth Amendment error is even more serious where the invalid 

aggravating factor caused the jury to consider irrelevant evidence, such as 

inapplicable prior convictions. Id. at 590; see also Brown v. Sanders, 546 U.S. 212, 

220 (2006). This concern is particularly heightened in a “weighing” state like 

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Arizona, where the jury must weigh the aggravators and mitigators against each 

other to determine whether to impose death. See Styers v. Schriro, 547 F.3d 1026, 

1034 (9th Cir. 2008). The court should have struck the (F)(2) aggravator and 

remanded to a jury for resentencing. See Apprendi v. New Jersey, 530 U.S. 466 

(2000); Ring v. Arizona, 536 U.S. 584 (2002); Hurst v. Florida, 136 S. Ct. 616 

(2016); Pavatt v. Royal, 894 F.3d 1115, 1152–53 (10th Cir. 2017) (Briscoe, C.J., 

concurring in part and dissenting in part) (noting that, in light of Ring’s and Hurst’s 

holdings that a defendant is entitled to a jury determination of all facts that can 

increase his sentence, Clemons’s rule permitting reweighing by an appellate court 

was unconstitutional, as Hurst and Ring explicitly overruled the cases on which 

Clemons was based). Though a jury resentencing was constitutionally mandated, at 

a minimum, the court should have conducted its own reweighing of the remaining 

aggravators and all of the mitigation. 

The Arizona Supreme Court’s failure to painstakingly review the entire 

record in search of error, including this significant error regarding the (F)(2) 

aggravator, injected arbitrariness and irrationality into the sentencing process and 

denied Kiles the due-process protections afforded other capital defendants in 

Arizona. The Arizona Supreme Court’s decision was thus contrary to clearly 

established federal law. See 28 U.S.C. § 2254(d)(1); Parker, 498 U.S. at 321; Hicks, 

447 U.S. at 346. Its finding that the (F)(2) aggravator was applicable based on 

Kiles’s prior convictions also amounts to an unreasonable determination of fact in 

light of the evidence presented at trial. See 28 U.S.C. § 2254(d). 

2. The Arizona Supreme Court violated Kiles’s rights by 

summarily determining that the invalidation of one prior 

conviction was immaterial. 

The Arizona Supreme Court violated Kiles’s right to be free from cruel and 

unusual punishment under the Eighth Amendment and his right to due process 

under the Fourteenth Amendment when it summarily determined that the 

invalidation of his prior conviction for attempted aggravated assault as a basis for 

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the (F)(2) aggravator was immaterial. Kiles, 213 P.3d at 188. 

As discussed above, the Arizona Supreme Court should have struck the 

(F)(2) aggravating circumstance entirely. Setting aside the court’s error with respect 

to the aggravated assault conviction explained above, the court erred in summarily 

upholding the (F)(2) aggravator when it struck one of the supporting convictions. 

The court correctly held that one of the prior convictions that the jury found 

supported the (F)(2) aggravating circumstance was legally inadequate to establish 

that circumstance. Id. at 186 (“the attempted aggravated assault conviction does not 

establish the (F)(2) aggravator”). But the court committed constitutional error by 

then summarily upholding the (F)(2) aggravating circumstance with no further 

discussion. Id. at 188. 

That conclusion was contrary to clearly established federal law, as the 

Arizona Supreme Court failed to follow its own procedures requiring it to “consider 

the quality and the strength, not simply the number, of aggravating and mitigating 

factors,” see id. at 187; see Hicks, 447 U.S. at 346. Whether the aggravating 

circumstance was supported by multiple or only one prior conviction went directly 

to the quality and strength of that aggravating circumstance and was therefore of 

great significance. The Arizona Supreme Court’s failure to conduct a “painstaking” 

de novo review of the trial court’s determination regarding the legally valid bases 

for the (F)(2) aggravator and the propriety of the death sentence violated Kiles’s 

Eighth and Fourteenth Amendment rights and was an unreasonable application of 

federal law. See Hicks, 447 U.S. at 346. 

The magnitude of the Arizona Supreme Court’s constitutional error in 

summarily dismissing the invalid prior conviction as immaterial is exacerbated by 

the fact that the jury considered irrelevant evidence—the inapplicable prior 

conviction—as aggravating evidence. See Johnson, 486 U.S. at 590. It was 

improper for the court not to analyze whether the additional prior conviction may 

have affected the jury’s deliberations. This need is particularly heightened in a 

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“weighing” state like Arizona, where the jury must weigh the aggravators and 

mitigators against each other to determine whether to impose death. In Kiles’s case, 

the court instructed the jury that the decision whether there was mitigation 

sufficiently substantial to call for leniency was to be based on “each juror’s 

individual qualitative evaluation of the facts of the case, the severity of the 

aggravating factors, and the quality of any mitigating evidence.” (Tr. May 22, 2006 

at 23–24 (emphasis added).) It is evident that where there was a pattern of prior 

convictions, as opposed to just one, jurors were likely to find the aggravating 

circumstance more severe and weigh it more heavily against the mitigating factors. 

A capital sentence is unconstitutional where, as here, an element of an invalid 

sentencing factor adds an “improper element to the aggravation scale in the 

weighing process.” Sanders, 546 U.S. at 220. None of the other sentencing factors 

enabled the sentencer to give aggravating weight to the same facts and 

circumstances as Kiles’s inapplicable prior conviction. It was an unreasonable 

application of federal law for the Arizona Supreme Court to summarily conclude 

that the partial invalidation of an aggravating circumstance based on an inapplicable 

prior conviction was immaterial. See Johnson, 486 U.S. at 585. As discussed above, 

the court should have remanded for jury resentencing or at a minimum, conducted 

an appellate reweighing. See Ring, 536 U.S. at 589; Hurst, 136 S. Ct. at 616; Pavatt, 

894 F.3d at 1152–53 (Briscoe, C.J., concurring in part and dissenting in part). 

The court’s summary conclusion that the removal of one of the convictions 

supporting the (F)(2) factor did not affect Kiles’s sentence violated Kiles’s 

constitutional rights under the Eighth and Fourteenth Amendments. Accordingly, 

Kiles is entitled to relief. 

B. The Arizona Supreme Court denied Kiles meaningful appellate 

review when it arbitrarily upheld the (F)(6) aggravating factor. 

The evidence in Kiles’s case did not support the (F)(6) aggravating factor 

beyond a reasonable doubt; the Arizona Supreme Court violated his constitutional 

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rights in upholding it.178 An appellate court cannot uphold a death sentence that 

rests on an aggravating circumstance “that upon the record evidence adduced at the 

trial no rational trier of fact could have found [proven] beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also Lewis v. Jeffers, 497 U.S. 

764, 781 (1990) (applying the standard from Jackson to the question whether, on 

habeas review, an aggravating circumstance was unsupported by the record). 

The Arizona Supreme Court deprived Kiles of meaningful appellate review 

when it upheld the (F)(6) aggravating factor where it could not have been proven 

beyond a reasonable doubt had the court “review[ed] the entire record.” Stokley, 

898 P.2d at 465. The court cherry-picked parts of the record that supported this 

factor, while ignoring entirely those that did not. It is critical that an aggravator is 

proven beyond a reasonable doubt. “The specified statutory aggravators in 

Arizona’s death penalty scheme are designed to narrow, in a constitutional manner, 

the class of first degree murderers who are death-eligible. If proof of an aggravator 

does not rise to the necessary standard, the aggravator has not been proven and may 

not be considered at sentencing.” State v. Soto-Fong, 928 P.2d 610, 626 (Ariz. 

1996). 

The court upheld the (F)(6) aggravator based on a finding of cruelty. Kiles, 

213 P.3d at 188. The State argued at trial its theory that Kiles began attacking 

Gunnel in her bedroom, where he struck her a number of times in the head with a 

tire iron and she lost consciousness. (See Tr. Apr. 11, 2006 at 34–35; Tr. May 22, 

2006 at 64.) The State argued that she then regained consciousness and came into 

 

178 The (F)(6) aggravating circumstance, see A.R.S. § 13-703(F)(6) (1988), is also 

unconstitutionally overbroad and vague. See infra, Claim 30; see also Maynard v. 

Cartwright, 486 U.S. 356, 363 (1988); Walton v. Arizona, 497 U.S. 639, 654 (1990) 

(finding that Arizona’s especially heinous, cruel, or depraved aggravating 

circumstance was facially vague, but did not violate the Eighth and Fourteenth 

Amendments because capital-sentencing decisions were made by trial judges, who 

could be presumed to follow the law), overruled on other grounds by Ring, 536 

U.S. 584. 

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the living room, where Kiles killed her. The Arizona Supreme Court adopted the 

State’s theory of the crime, even though it was not supported by the evidence 

beyond a reasonable doubt. See Claim 9, supra. In upholding the (F)(6) aggravator, 

the court found that “the evidence shows that Valerie was conscious after the attack 

began.” Kiles, 213 P.3d at 188. The court based this finding on its conclusion that 

“Kiles admitted that Valerie remained conscious after the attack began, and the 

medical testimony regarding defensive wounds supported that conclusion.” Id. The 

court apparently based this finding on Kiles’s purported admission after-the-fact to 

his brother-in-law, Larry Hawkins.179 See id. (“Additional evidence supports the 

(F)(6) aggravator and the version of events Kiles admitted to Hawkins.”). 

However, at the aggravation phase, Hawkins’s testimony did not support this 

theory. He testified twice that he did not remember Kiles telling him where in the 

apartment Kiles struck Gunnel. (Tr. Mar. 22, 2006 at 38, 39.) Both in his testimony 

and in a Silent Witness letter describing a version of events, Hawkins made no 

mention of Gunnel moving from room to room. (2006 Trial Ex. 90 at 1; Tr. July 13, 

2000 at 3–79.) Notably, the detective who investigated the case, Brian Rodgers, 

testified at the aggravation phase that “I don’t think [Gunnel] was – after things 

started, I don’t think she ever made it to the east bedroom.” (Tr. Apr. 3, 2006 at 

100.) Thus even the State’s lead investigator rejected the State’s theory of the crime. 

Moreover, there was ample reason to doubt Hawkins’s testimony and letter 

on this purported admission. Hawkins was telling a story second-hand, based on 

what Kiles told him while intoxicated on alcohol, cocaine, and other drugs. (Tr. 

July 13, 2000 at 60–62.) At the guilt phase, Hawkins admitted that his letter was 

only a rough picture of what Kiles had told him. (Tr. July 13, 2000 at 18.) Further, 

he testified at the aggravation phase that he wrote the letter after seeing news reports 

about the crime and speaking to other people, including the detective investigating 

 

179 The State never alleged that Hawkins was present for the crime; instead, his 

testimony was based on what he remembered Kiles telling him after the crime. 

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the crime, which would have improperly infected his recollection of what Kiles told 

him. (Tr. Mar. 22, 2006 at 61–63, 75.) 

The Arizona Supreme Court stated that additional evidence supported the 

version of events Kiles purportedly admitted to Hawkins. Kiles, 213 P.3d at 188. 

But, the physical evidence the court did have before it did not prove at all, much 

less beyond a reasonable doubt, that Gunnel regained consciousness. For example, 

the court noted that a piece of the jack was found in Gunnel’s bedroom. Id. 

However, many sources, including Rodgers, testified that items in the house were 

moved after the crime.180 (Tr. July 11, 2000 at 166–67; Tr. Apr. 3, 2006 at 99–100.) 

The court itself recognized that Kiles attempted to clean up the scene—and 

therefore that the crime scene was compromised—as reason for discounting his 

intoxication as a mitigating factor. Kiles 213 P.3d at 190. 

The court also pointed to a pillow that was found with blood on it “consistent 

with a source that continued to move.” Id. at 188. However, the testimony of Tom 

Bevel, the blood-spatter expert, was that something was “smearing the blood,” 

which indicated that “the blood source or something that is in fact bloody, isn’t just 

resting down.” (Tr. Mar. 27, 2006 at 72–73.) This smear easily could have occurred 

while Kiles was moving things around, or after the victim was deceased. See Claim 

5, supra. The court also cited “a transfer stain consistent with a person running a 

bloody hand along a door” as evidence supporting the theory that Gunnel regained 

consciousness during the attack. But the evidence demonstrated that it was not 

Gunnel who had made the transfer stain. Kale Johnson, who pleaded guilty to 

hindering the prosecution in Kiles’s case, testified via affidavit that he got blood on 

his hand and tried to wipe it off on the inside frame of the apartment door; this 

sworn statement was read into the record at the mitigation phase. (Tr. July 14, 2000 

at 134–35; Tr. July 17, 2000 at 35; Tr. Apr. 27, 2006 at 78; PFR2 Dkt. 20 Ex. 1 at 

 

180 Rodgers also testified at the aggravation phase that there was no blood spatter or 

castoff in Gunnel’s bedroom to support the State’s theory. (Tr. Apr. 3, 2006 at 22.) 

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7.) The court noted that this transfer stain, along with blood-spatter evidence, 

“indicated that either the blood source or the attacker was moving.” Kiles, 213 P.3d 

at 188 (emphasis added). The ambiguous blood-stain evidence certainly does not 

prove beyond a reasonable doubt that Gunnel was conscious after the attack began. 

(Tr. July 13, 2000 at 93–107; Tr. July 14, 2000 at 4–61.) 

The Arizona Supreme Court similarly erred when it cited the medical 

examiner’s testimony on “defensive wounds” as supporting the conclusion that 

Gunnel remained conscious. The medical expert testified that Gunnel’s arm had 

evidence of a single “defensive wound.” (Tr. July 13, 2000 at 99; see also Tr. Mar. 

21, 2006 at 21 (Gunnel’s injury “consistent with” a defensive wound).) 

Finally, the court distinguished Kiles’s case from Soto-Fong, in which it 

rejected the (F)(6) factor because, although the defendant thought a victim remained 

conscious, it was not proven beyond a reasonable doubt. See Soto-Fong, 928 P.2d 

at 625 (it would be unconstitutional for “an alternative finding based on a 

hypothetical set of facts” to support an aggravating factor). The Arizona Supreme 

Court referred to Kiles’s “admissions” as evidence supporting the finding that 

Gunnel regained consciousness. But Hawkins’s testimony and Silent Witness letter 

alone did not support that finding beyond a reasonable doubt, and the State 

presented no other alleged admission from Kiles regarding how Gunnel’s death 

unfolded. In fact, Kiles later testified on the stand that, once he hit Gunnel with the 

jack, she fell down in a chair and never got up. (Tr. July 17, 2000 at 165.) And there 

was no other evidence to support the (F)(6) aggravator beyond a reasonable doubt. 

 Thus, in upholding the (F)(6) aggravator, the court appears to have relied on 

argument and hypotheticals offered by the State, not on testimony by medical or 

other witnesses. (Tr. Mar. 21, 2006 at 34); see Claim 9 supra. “To conclude that a 

murder would be especially cruel or heinous if committed in an assumed manner, 

without evidence that it was committed in that manner, falls short of the mark.” 

Soto-Fong, 928 P.2d at 626. On this record, no rational factfinder could have found 

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beyond a reasonable doubt that Gunnel regained consciousness after Kiles struck 

her, a requirement for finding cruelty. See Lewis, 497 U.S. at 781. The Arizona 

Supreme Court’s decision upholding this aggravating factor unconstitutionally 

denied Kiles his right to meaningful appellate review and amounts to an 

unreasonable application of federal law.181 See Parker, 498 U.S. at 321; Jackson, 

443 U.S. at 324; Lewis, 497 U.S. at 781. 

C. The Arizona Supreme Court denied meaningful appellate review 

by inflating the weight of the (F)(8) aggravating circumstance.

The Arizona Supreme Court deprived Kiles of meaningful appellate review 

by automatically assigning “extraordinary weight” to the multiple-homicides 

aggravating circumstance. See A.R.S. § 13-703(F)(8) (1988). Without considering 

the specific circumstances of Kiles’s case, the court stated that this circumstance 

“receives extraordinary weight.” Kiles, 213 P.3d at 191 (quoting State v. Boggs, 

185 P.3d 111, 130 (Ariz. 2008)). This violated Kiles’s constitutional rights. See 

Parker, 498 U.S. at 321. 

That premise originated in State v. Rogovich, 932 P.2d 794 (Ariz. 1997), in 

which the defendant had been found guilty of four counts of first-degree murder 

and two counts of armed robbery, among other convictions. Id. at 796. The trial 

court found in aggravation that the defendant had “been convicted of: (1) another 

offense in the United States for which under Arizona law a sentence of life 

imprisonment or death was imposable; (2) a felony involving the use or threat of 

violence on another person; and (3) one or more other homicides committed during 

the commission of the offense.” Id. at 800 (citations omitted). During its appellate 

review, the Arizona Supreme Court found that, of the three aggravating 

circumstances found, “the (F)(8) circumstance carrie[d] the most weight.” Id. at 

802. 

 

181 The court compounded this constitutional harm when it arbitrarily decided to 

accord “significant weight” to the (F)(6) aggravator. Kiles, 213 P.3d at 191. 

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Since Rogovich, however, the Arizona Supreme Court has made an 

unconstitutional blanket declaration that the multiple-homicides aggravating 

circumstance warrants “extraordinary weight.” The court has then cited to 

Rogovich, or to a case citing Rogovich, despite the fact that Rogovich does not 

support such a declaration. For example, in State v. Hampton, the defendant was 

convicted of murdering a man and a pregnant woman, and the jury found that two 

aggravating circumstances, including multiple homicides, had been proven. 140 

P.3d 950, 954–55 (Ariz. 2006). During its independent review, the Arizona 

Supreme Court declared that “[t]he (F)(8) multiple homicides aggravator is 

extraordinarily weighty.” Id. at 967. And the court cited Rogovich, which made no 

such sweeping statement. More recently, the Arizona Supreme Court has cited

Hampton for the principle that the multiple-murders circumstance carries 

“extraordinary weight.” See, e.g., Boggs, 185 P.3d at 118, 130, 132 (upholding 

death sentences in a case where defendant was convicted of three counts of firstdegree murder). 

The Arizona Supreme Court in this case likewise afforded the multiplehomicides aggravating circumstance “extraordinary weight,” with no support or 

explanation beyond the citation to Boggs. Kiles, 213 P.3d at 191. The court ignored 

the fact that, in the Enmund/Tison findings for the two child victims, the jury could 

not reach a unanimous verdict as to whether Kiles had intentionally killed them. Id. 

at 186. The court did not consider this nuance during its independent review.182 The 

court should further have considered that Kiles did not receive death sentences for 

all of the victims, likely the result of lingering doubt. Instead, the court assigned the 

multiple-homicide aggravating circumstance the same “extraordinary weight” that 

 

182 The court further erred when it stated that “Kiles no longer disputes that he 

murdered the children.” Kiles, 213 P.3d at 188. Kiles did not concede his guilt, but 

instead made a strategic decision to waive his appellate rights to challenge the 

convictions and sentences to avoid two additional potential death sentences. (See 

DA2 Dkt. 86 at 12, 13.) 

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the court would have afforded it had Kiles been sentenced to death for all three 

convictions. 

The court’s arbitrary assigning of extraordinary weight to the multiplehomicides aggravating circumstance, with complete disregard for the 

circumstances of the offense, violates the individualized sentencing at the 

cornerstone of Eighth-Amendment jurisprudence and is contrary to federal law. See 

Parker, 498 U.S. at 321 (“[M]eaningful appellate review requires that the appellate 

court consider the defendant's actual record. ‘What is important . . . is an 

individualized determination on the basis of the character of the individual and the 

circumstances of the crime.’” (quoting Stephens, 462 U.S. at 879)). A denial of this 

individualized consideration thus equates to a denial of meaningful appellate 

review. See id.; see also Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (“[A] 

consistency produced by ignoring individual differences is a false consistency.”). 

D. The Arizona Supreme Court denied Kiles his constitutionally 

protected right to meaningful independent review when it ignored 

many of his mitigating factors and mischaracterized others. 

Because Arizona defined its appellate review process to include independent 

review, its independent review was required to comport with the requirements of 

the Sixth, Eighth, and Fourteenth Amendments. See Hicks, 447 U.S. at 346. It was 

also required to comport with the requirements that the Arizona Supreme Court has 

itself outlined, described above. Here, the court did not conduct a “de novo,” 

“painstaking” review. Instead, it upheld all of the aggravators with little thought 

and misconstrued or minimized mitigating evidence. Though Kiles alleged 30 nonstatutory mitigating factors, the court did not even mention or address most of them. 

See Kiles, 213 P.3d at 189; (see also Tr. May 22, 2006 at 19–21). In its 

“independent” review, the court instead discussed Kiles’s failure to prove two 

statutory factors. Id. But, at trial Kiles did not allege either of those two statutory 

mitigators. (Tr. May 22, 2006 at 19–21.) The court similarly misconstrued Kiles’s 

extensive mental-health evidence as an attempt to prove the statutory mitigating 

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factor of impaired capacity. Kiles, 213 P.3d at 189. In fact, the defense sought to 

use that evidence to prove a variety of non-statutory mitigating circumstances, 

including depression, possible neurological damage, and psychological disorders, 

in order to demonstrate that Kiles warranted leniency. (Tr. May 22, 2006 at 19–21.) 

In discussing Kiles’s abusive childhood, the court focused disproportionately on the 

few pieces of evidence that pointed to a happy childhood and discounted extensive 

testimony to the contrary. Kiles, 213 P.3d at 189. The court found only that his 

childhood was “less than ideal.” Id. In sum, the Arizona Supreme Court failed to 

independently and fairly analyze whether mitigation was sufficiently substantial to 

warrant leniency, in violation of Kiles’s rights to due process and meaningful 

appellate review. Its decision is therefore contrary to clearly established federal law. 

See Hicks, 447 U.S. at 346; Parker, 498 U.S. at 321. 

E. The Arizona Supreme Court’s decision denied Kiles meaningful 

appellate review by irrationally discounting and failing to give 

effect to the mitigating circumstances it did acknowledge. 

 To achieve the reliability demanded of a capital sentence, state courts must 

not only provide meaningful appellate review, but must ensure that the review does 

not inject any irrationality into the sentencing process. See Parker, 498 U.S. at 321. 

Moreover, the process must allow the sentencer not only to consider, but also to 

give effect to, mitigation. Tennard v. Dretke, 542 U.S. 274, 285 (2004). And, just 

as the jury must be able to give effect to mitigation in a rational manner, so must a 

state appellate court. Cf. Eddings, 455 U.S. at 114–15. 

 When considering mitigating factors, the Arizona Supreme Court has 

developed a body of case law to determine what weight to give to each factor. The 

effect of this case law, however, is that individualized consideration of the 

defendant’s character is gutted based on irrelevancies. See Eddings, 455 U.S. at 112 

(requiring focus “on the characteristics of the person who committed the crime” 

(quoting Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, 

Powell, and Stevens, JJ.)). Moreover, the considerations the state supreme court 

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uses to determine the weight to give a particular mitigating circumstance ultimately 

preclude the court from giving effect to certain types of mitigation. See Tennard, 

542 U.S. at 285. 

 The court made an unconstitutional error in imposing a causal-nexus 

requirement on the mitigating factors it found proven. Kiles, 213 P.3d at 191. 

Because the psychiatric testimony “did not establish a sufficient connection to the 

murder to warrant significant weight,” the court essentially discounted it. Id. 

Similarly, the court held that Kiles’s childhood “carries minimal weight ‘because 

the evidence . . . is far removed from the crime.’” Id. (quoting State v. Armstrong, 

189 P.3d 378, 392–93 (Ariz. 2008)). The U.S. Supreme Court has repeatedly held 

that such a causal-nexus test violates the Eighth and Fourteenth Amendments 

because it precludes the sentencer from giving effect to certain types of mitigation. 

See Tennard, 542 U.S. at 285. The Arizona Supreme Court’s use of a causal-nexus 

test in reviewing Kiles’s sentence is contrary to Edding’s clearly established federal 

law. See McKinney v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015) (en banc). 

 The court discounted the other mitigation it found Kiles had proven for 

various arbitrary reasons. For example, it arbitrarily discounted Kiles’s model 

behavior in prison: “though Kiles established that he has been a model prisoner 

since being taken into custody, this Court accords this mitigating factor minimal 

weight because of the expectation that prisoners behave in prison.” Kiles, 213 P.3d 

at 191 (quoting State v. Dann, 207 P.3d 604, 628 (Ariz. 2009)). This was not 

individualized consideration, as it failed to take into account that Kiles had spent 

nearly 20 years in various prison and jail settings and had demonstrated exemplary 

behavior in all of them.183 This was also in violation of clearly established federal 

law, as the U.S. Supreme Court held in Skipper v. South Carolina, 476 U.S. 1, 5, 

 

183 Two of Kiles’s former prison guards testified on his behalf at his penalty-phase 

trial. (Tr. Apr. 26, 2006 at 4–23.) A prison management expert testified that he had 

never seen a record as spotless as Kiles’s. (Tr. Apr. 27, 2006 at 32); see Claim 6, 

supra.

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(1986), that a capital sentencer must give consideration to a defendant’s good 

behavior in custody as mitigation evidence. 

 The court further dismissed Kiles’s “psychiatric testimony” because “at most 

it established his bad judgment, not his inability to judge.” Kiles, 213 P.3d at 191 

(citing State v. Tucker, 160 P.3d 177, 202 (Ariz. 2007) and State v. Pandeli, 161 

P.3d 557, 576 (Ariz. 2007) for the proposition that “insubstantial impairment and 

defendant’s ability to discern right from wrong lead to according such mitigation 

lesser weight”).) If Kiles had a psychiatric condition that rendered him unable to 

judge right from wrong, he could not have been held legally accountable for the 

crimes at issue. To refuse to give effect to any mitigation that falls below this 

threshold is unconstitutional. See Eddings, 455 U.S. at 114–15. 

 Moreover, the court held that it would not give great weight to the fact that 

Kiles acted impulsively, “suggesting this means he could not control his behavior,” 

because this “does not account for the sustained attack on Valerie, nor his decision 

to murder the children.” Kiles, 213 P.3d at 191. As discussed above, the State did 

not prove beyond a reasonable doubt that there was a sustained attack on Gunnel. 

Second, in so concluding, the court improperly relied on facts not found by the jury: 

neither the guilt-phase jury nor the penalty-phase jury unanimously found that Kiles 

had made a premeditated “decision” to kill the children. Kiles, 213 P.3d at 186. The 

Sixth Amendment does not allow a defendant to be “expose[d] . . . to a penalty 

exceeding the maximum he would receive if punished according to the facts 

reflected in the jury verdict alone.” Apprendi, 530 U.S. at 483. This applies to 

capital sentencing as well: a defendant is “entitled to a jury determination” of facts 

that can increase the sentence he faces. Ring, 536 U.S. at 589. 

Finally, the court deemed that Kiles had established the mitigation of chronic 

intoxication, but that it warranted reduced weight “given that his efforts to cover up 

the crime demonstrate his knowledge of its wrongfulness.” Kiles 213 P.3d at 191 

(citing State v. Rienhardt, 951 P.2d 454, 466–67 (Ariz. 1997)). The blanket 

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application of a rule like this is arbitrary and contrary to federal law. See Parker, 

498 U.S. at 321. Moreover, the court ignored the fact that Kiles’s ineffectual and 

haphazard effort to clean up the crime scene also involved ransacking the apartment 

to find property to sell for drugs—again, a product of Kiles’s intoxication and 

addictions. 

 The court effectively and unreasonably eviscerated mitigation stemming 

from Kiles’s background and character. The court relied on illogical considerations 

to undercut established mitigating factors’ weight, thereby arbitrarily failing to give 

that form of mitigation any effect. 

 The Arizona Supreme Court’s consideration of Kiles’s mitigating 

circumstances violated the bedrock principles of reliability in sentencing. See, e.g., 

Tennard, 542 U.S. at 285; Eddings, 455 U.S. at 112–15. By conditioning the value 

of a factor like mental health or intoxication on the circumstances of the crime, the 

court failed to take into account Kiles’s personal characteristics, as required by 

Eddings and the Eighth Amendment. See Eddings, 455 U.S. at 112. Further, the 

court injected an impermissible dose of irrationality into capital sentencing. See 

Parker, 498 U.S. at 321. And, by applying a causal-nexus test and otherwise 

arbitrarily undercutting the significance of mitigating circumstances, the court 

failed to give effect to mitigation. See Tennard, 542 U.S. at 285. As a result, the 

Arizona Supreme Court’s decision is contrary to clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). 

Because the procedure used to affirm Kiles’s sentence did not satisfy the 

standard required in capital cases, see Woodson, 428 U.S. at 305, Kiles’s sentence 

is constitutionally infirm, and he is entitled to relief. 

F. The Arizona Supreme Court’s individual and cumulative errors 

deprived Kiles of his constitutional rights. 

 The Arizona Supreme Court’s various errors, including the denial of 

meaningful appellate review, due process, and individualized sentencing, violated 

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Kiles’s rights under the Sixth, Eighth, and Fourteenth Amendments. Moreover, 

each of the court’s errors deprived Kiles of his protected liberty interest in the 

Arizona Supreme Court’s independent review. See Hicks, 447 U.S. at 346. Had the 

court provided meaningful appellate review unmarred by constitutional error, it 

would not have upheld Kiles’s lone death sentence. 

G. This Court may review this claim de novo. 

This Court may review this claim de novo, as 28 U.S.C. § 2254(d) poses no 

bar to relief. The state court’s decision was contrary to, or involved an unreasonable 

application of, clearly established federal law, as determined by U.S. Supreme 

Court precedent. See 28 U.S.C. § 2254(d)(2); see also, e.g., Hicks, 447 U.S. at 346 

(due process requires meaningful appellate review); Parker, 498 U.S. at 321 

(meaningful appellate review in the capital-sentencing context requires an 

individualized determination based on the character of the individual and the 

circumstances of the crime); Lewis, 497 U.S. at 781 (1990) (aggravating factor 

cannot be upheld where no rational trier of fact could have found it proven beyond 

a reasonable doubt); Johnson, 486 U.S. at 585 (death sentence cannot be imposed 

based in part on invalid aggravating factor); Tennard, 542 U.S. at 285 (sentencer 

must be able to give effect to all mitigation). Moreover, the state-court decision was 

based on an unreasonable determination of the facts in light of the evidence 

presented, as discussed above. See 28 U.S.C. § 2254(d)(2). Accordingly, Kiles is 

entitled to relief. 

Claim Thirteen 

Kiles’s jury-imposed death sentence unconstitutionally relied upon 

two invalid prior convictions. 

Kiles was sentenced to death by a jury that considered two prior convictions 

that were legally insufficient to support Arizona’s (F)(2) aggravator, see A.R.S. 

§ 13-703(F)(2) (1988), in violation of Kiles’s rights under the Sixth, Eighth, and 

Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

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reference all facts, allegations, and arguments made elsewhere in this Petition. 

This claim was effectively addressed on the merits by the state postconviction court when it held that there was no colorable showing of prejudice 

regarding trial counsel’s ineffective assistance with respect to the invalid (F)(2) 

aggravator. (ROA 1214 at 2; see also ROA 1189 at 46–48; PFR2 Dkt. 1 at 47–48.) 

The state court’s denial of this claim was an unreasonable application of or contrary 

to the clearly established Sixth and Eighth Amendment precedent discussed below, 

see 28 U.S.C. § 2254(d)(1), and rested on an unreasonable determination of the 

facts, id. § 2254(d)(2). The strictures of § 2254(d) thus do not apply to this claim, 

and this Court may review the merits of this claim de novo.184

Because of the particular need for reliability in capital cases, no death 

sentence “predicated on mere ‘caprice’ or on ‘factors that are constitutionally 

impermissible’” may stand. Johnson v. Mississippi, 486 U.S. 578, 584–85 (1988) 

(quoting Zant v. Stephens, 462 U.S. 862, 885 (1983)). In particular, no death 

sentence may stand when based in part on a conviction that was impermissible 

support for an aggravating circumstance. See id. at 585–89 (deeming 

unconstitutional a death sentence based in part on prior conviction that had been 

reversed). Further, in a state where the jury has to “weigh” the aggravation versus 

the mitigation in arriving at its sentencing decision, the determination is necessarily 

affected by the consideration of an impermissible aggravator, especially one based 

on an invalid prior conviction. See Stringer v. Black, 503 U.S. 222, 232–33 (1992) 

(“But when the sentencing body is told to weigh an invalid factor in its decision . . . 

the weighing process itself has been skewed. . . .”). Succinctly put, 

 

184 Alternatively, Kiles alleges he can overcome any default by showing cause and 

prejudice attributable to the ineffective assistance of state post-conviction counsel. 

See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland v. Washington, 466 U.S. 

668, 688, 694 (1984). 

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[a]n invalidated sentencing factor (whether an eligibility 

factor or not) will render the sentence unconstitutional by 

reason of its adding an improper element to the aggravation 

scale in the weighing process unless one of the other 

sentencing factors enables the sentencer to give 

aggravating weight to the same facts and circumstances. 

Brown v. Sanders, 546 U.S. 212, 220 (2006) (footnote omitted). 

Moreover, when the basis of an aggravator found by the jury is invalid, the 

only constitutional recourse under the Sixth Amendment is a remand for a new 

sentencing before a jury. See Apprendi v. New Jersey, 530 U.S. 466, 469, 497 

(2000); Ring v. Arizona, 536 U.S. 584, 588 (2002); Hurst v. Florida, 136 S. Ct. 616, 

621 (2016); Pavatt v. Royal, 894 F.3d 1115, 1152–53 (10th Cir. 2017) (Briscoe, 

C.J., concurring in part and dissenting in part) (explaining that in light of Ring and 

Hurst, which held that a defendant is entitled to a jury determination of all facts that 

can increase his sentence, appellate reweighing is no longer constitutional); see also 

infra, Claim 21. 

As explained in depth in Claims 5, 11, and 12, supra, Kiles’s penalty-phase 

jury considered two prior felony convictions that were legally insufficient to 

establish the (F)(2) aggravator. The Arizona Supreme Court on direct appeal 

acknowledged that the first of those two convictions, an attempted aggravated 

assault conviction, could not support the (F)(2) aggravator. State v. Kiles, 213 P.3d 

174, 185–86 (Ariz. 2009). The court did not similarly re-evaluate whether Kiles’s 

prior conviction for aggravated assault was likewise invalid and so wrongly upheld 

that conviction as a basis for the aggravator. See id.; see supra, Claim 5. The court 

then concluded that the invalidated basis was immaterial, as there existed a separate 

conviction to support the (F)(2) aggravator, and upheld Kiles’s death sentence. Id.

at 186, 192. 

This procedure was unconstitutional in light of the U.S. Supreme Court’s 

Sixth and Eighth Amendment jurisprudence. First, the weighing process itself was 

skewed by the jury’s consideration of the attempted aggravated assault conviction, 

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as the jury could not otherwise have considered this prior conviction as aggravation. 

See Brown, 546 U.S. at 220. As a result, under the Eighth Amendment, Kiles’s 

death sentence could not stand. See id.; Johnson, 486 U.S. at 584–85. That error 

was compounded by the Arizona Supreme Court’s failure to strike the aggravated 

assault prior conviction for the purposes of the (F)(2) aggravator and, by extension, 

to strike the aggravator altogether. See, e.g., Claims 5, 12, supra. 

In sum, the jury was given two prior convictions, evincing a pattern of 

escalating violence, to consider as aggravation under the (F)(2) aggravator. The 

State told the jury that its finding should be clear-cut (Tr. Apr. 11, 2006 at 31–32), 

and even the defense did not contest that the aggravated assault satisfied the (F)(2) 

aggravator. (Tr. Apr. 11, 2006 at 80 (“That attempted assault doesn’t qualify, but 

the other assault conviction—aggravated assault—does. And it proved the factor 

period.”).) But the jury should not have been able to consider either conviction as 

aggravation; the jury should not have been able to consider the (F)(2) aggravating 

circumstance at all. In such circumstances, the constitutional error was substantial 

and injurious, infecting Kiles’s entire penalty phase. See Brecht v. Abrahamson, 

507 U.S. 619, 637–38 (1993). Kiles is entitled to relief. 

Claim Fourteen 

Kiles’s second state post-conviction counsel were constitutionally 

ineffective. 

Kiles’s second state post-conviction counsel were ineffective and deprived 

Kiles of his constitutional rights to due process and effective assistance of counsel 

in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution. Kiles 

incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

By the nature of this claim, these proceedings are the first in which Kiles can 

raise these issues. Because no state court has decided the merits of this claim, the 

limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply, and this Court’s 

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review of this claim should be de novo. 

In Arizona, “the initial-review collateral proceeding is the first designated 

proceeding for a prisoner to raise a claim of ineffective assistance at trial, the 

collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal.” 

Martinez v. Ryan, 566 U.S. 1, 11 (2012). And the direct appeal is a critical 

component of a constitutional sentencing scheme. Parker v. Dugger, 498 U.S. 308, 

321 (1991) (“[The Supreme Court] has emphasized repeatedly the crucial role of 

meaningful appellate review in ensuring that the death penalty is not imposed 

arbitrarily or irrationally.”). 

“Without the help of an adequate attorney, a prisoner will have . . . 

difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim.” 

Martinez, 566 U.S. at 11. Ineffective-assistance claims “often require investigative 

work and an understanding of trial strategy. When the issue cannot be raised on 

direct review, moreover, a prisoner asserting an ineffective-assistance-of-trial 

counsel claim” during post-conviction proceedings cannot “rely on a court opinion 

or the prior work of an attorney addressing that claim.” Id. at 11–12. Thus, “[t]o 

present a claim of ineffective assistance at trial in accordance with the State’s 

procedures . . . a prisoner likely needs an effective attorney.” Id.

Kiles’s second state post-conviction team failed to provide effective 

representation. Kerrie Droban (DA2 Dkt. 126 at 1) and Sharmila Roy (ROA 1035 

at 1), Kiles’s appointed counsel, had a difficult time working together. The physical 

file was divided between their offices, and their approach was divided as well. Their 

conflicts adversely affected the rest of the team. They let go of an experienced 

mitigation specialist because of personality conflicts and hired someone with no 

capital mitigation experience. They could not agree on what was important at 

mitigation, leading to a disjointed, incomplete presentation of Kiles’s personal 

mitigating history to the state court. And their inability to work together culminated 

in a failure to file a reply brief in Kiles’s second state post-conviction proceedings. 

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The 2003 ABA Guidelines state that post-conviction counsel have a duty to 

“seek to litigate all issues, whether or not previously presented, that are arguably 

meritorious under the standards applicable to high quality capital defense 

representation, including challenges to any overly restrictive procedural rules.” 

2003 ABA Guideline 10.15.1(C). This Droban and Roy did not do. Their 

representation fell below the standards required for constitutionally effective postconviction counsel. See Martinez, 566 U.S. at 11–12. 

Kiles’s state post-conviction counsel were deficient in a number of ways, 

elaborated upon below, and Kiles was prejudiced. 

A. Post-conviction counsel were ineffective. 

For the reasons articulated throughout this Petition, Kiles’s second state postconviction counsel’s performance fell below the standard of minimally competent 

assistance. Three non-exhaustive examples underscore post-conviction counsel’s 

deficiencies. Because Kiles did not receive effective assistance during his state 

post-conviction proceedings, he failed to have effective post-conviction review of 

a number of meritorious claims, including ineffective assistance of trial and 

appellate counsel, before the state courts. 

1. Post-conviction counsel failed to adequately raise claims. 

State post-conviction counsel failed to raise several meritorious claims, 

specifically ineffective-assistance-of-counsel claims, which could only be 

appropriately raised in a state post-conviction proceeding. See State v. Kiles, 213 

P.3d 174, 183–84 (Ariz. 2009). 

For example, Droban and Roy did not raise ineffective-assistance claims for 

failure to competently conduct voir dire at the guilt and penalty phases, see Claims 

2 and 4, supra, failure to make a complete record, see Claim 16, infra, and failure 

to challenge Kiles’s grand-jury proceedings, see Claim 15, infra. Notably, postconviction counsel raised a challenge to Kiles’s grand-jury proceedings as a 

standalone constitutional claim, even though counsel knew or should have known 

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that such a claim would be precluded. This is especially problematic when the 

record itself included signs of deficient performance by trial counsel: counsel 

requested an extension of time to file a motion to challenge the grand-jury 

proceedings, but then never subsequently filed the motion. (ROA 388 at 1–2.) 

Droban and Roy therefore failed to bring meritorious ineffective-assistance 

claims for state post-conviction review, fell below the standards expected of postconviction counsel, and prejudiced Kiles. See Kiles, 213 P.3d at 183; Martinez, 566 

U.S. at 11; Strickland v. Washington, 466 U.S. 668 (1984); see also 2003 ABA 

Guideline 10.15.1(C). 

2. Post-conviction counsel failed to adequately develop 

mitigation evidence with both lay and expert witnesses. 

Post-conviction counsel failed to uncover significant mitigation. Their 

performance was deficient as to both lay witnesses and experts.

Droban and Roy’s initial error was dismissing a seasoned mitigation 

specialist in part because of a personality conflict. Moreover, as an experienced 

mitigation specialist, she believed that more extensive efforts would be required to 

conduct a reasonable mitigation investigation, relative to what the attorneys were 

willing to undertake. As a replacement, they hired a mitigation investigator with no 

capital mitigation experience. Jeff Trollinger had never previously worked on a 

capital mitigation case, received no training prior to his appointment, and got very 

little direction from Droban and Roy. As a result, he did not conduct an 

independent, thorough mitigation investigation but rather focused on reinvestigating the crime. He mainly chose to interview witnesses who had signed 

affidavits during Kiles’s first state post-conviction proceedings to determine 

whether their statements were still consistent. Because of his lack of training, the 

majority of his questions went toward re-investigating the facts of Kiles’s guilt 

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rather than building a mitigation history.185 He failed to conduct a mitigation 

investigation beyond the record that already existed, which defeated the purpose of 

state post-conviction proceedings. Due to counsel’s failure to conduct a thorough 

investigation into Kiles’s mitigating personal history, Kiles never had his mitigation 

effectively reviewed by the state post-conviction court. 

While Trollinger failed to work effectively with lay witnesses for Kiles’s 

post-conviction mitigation presentation, Droban and Roy failed to work effectively 

with mitigation experts. First, Droban and Roy failed to hire a trauma specialist to 

interview Kiles and present a compelling portrait of the trauma he had suffered and 

the effect it had on him. They failed to reasonably present to the state postconviction court that starting at a young age, Kiles had suffered from mental illness 

and depression, which stemmed from abuse, neglect, and the predisposition toward 

mental illness and addiction in his family. They further failed to adequately explain 

that, compounding Kiles’s genetic predisposition toward addiction, Kiles had been 

given alcohol from a young age and his sister had exposed him to drugs by the time 

he was a pre-teen. Counsel did not adequately convey the level of abuse and 

dysfunction present around Kiles throughout his formative years, further hindering 

his ability to function successfully as an adult. 

Rather than hire an appropriate trauma specialist, Droban and Roy hired an 

expert who could discuss the effects of race broadly on African Americans, but who 

had little to offer about the effects of racism on Kiles specifically. (ROA 1189 at 

52–57.) For example, while the expert stated that certain events “may have resulted 

in racism-based traumatic stress,” some of these events concerned Yuma broadly, 

rather than Kiles specifically. And while the expert interviewed Kiles, he did not 

interview his family and was thus unable to present a compelling narrative about 

 

185 For instance, Trollinger spent a considerable amount of time trying to investigate 

a baseless rumor that Gunnel’s daughter Shemaeah was not dead but had been 

trafficked. 

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how racism specifically impacted Kiles due to intergenerational trauma. Moreover, 

the expert’s report was unable to explain how the trauma that African-Americans 

endure in general in America manifested in Kiles in particular, which was necessary 

for the report to be compelling as mitigation. Had Droban and Roy hired appropriate 

experts in trauma, they would have been able to present evidence that was both 

comprehensive and also specific to Kiles, his family, and his history. 

Second, Droban and Roy hired a series of neuropsychologists to evaluate 

Kiles. (ROA 1047 at 1; ROA 1057 at 1; ROA 1132 at 1.) However, each 

neuropsychologist was directed to give the same or similar tests, rendering the 

results of certain testing unreliable due to the practice effect. “[U]nder the practice 

effect, a person scores higher on a test when it is readministered within a short 

period of time because he has become familiar with the test.” See Smith v. Ryan, 

813 F.3d 1175, 1183 (9th Cir. 2016). Droban and Roy should have been aware of 

the practice effect, as Arizona courts had already recognized its existence. See State 

ex rel. Thomas v. Duncan, 216 P.3d 1194, 1195 n.4 (Ariz. Ct. App. 2009) (“The 

practice effect occurs when a person performs better on a test because he or she has 

taken it before.”). Clinical guidelines widely available at the time also recognized 

the practice effect. See, e.g., Am. Psychiatric Ass’n, Diagnostic and Statistical 

Manual of Mental Disorders 37 (5th ed. 2013) (“DSM-5”). 

In defiance of best practices and prevailing clinical information on 

neuropsychological testing, Droban and Roy elected to have three 

neuropsychologists evaluate Kiles using the same or similar tests within a short 

period. Two neuropsychologists visited Kiles just a year apart: neuropsychologist 

Paul Connor, Ph.D., administered tests on April 12 and 13, 2012, and John Toma, 

Ph.D., tested Kiles on May 8 and 10, 2013.186 (PFR2 Dkt. 27 Ex. 24 at 1.) While 

 

186 The practice effect varies depending on the test given, but clinicians have 

recognized that the practice effect can render scores unreliable even if several years 

have passed between tests. See, e.g., United States v. Williams, 1 F. Supp. 3d 1124, 

1143–45 (D. Haw. 2014) (discussing practice effect). 

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some of Dr. Toma’s results remain well-founded, some are affected by the practice 

effect and cannot be considered reliable. (ROA 1189 at 57–58.) It is worth noting 

that the third neuropsychologist who was asked to evaluate Kiles, Karen Froming, 

Ph.D., refused to re-test Kiles, citing the practice effect. Post-conviction counsel’s 

deficient performance left Kiles unable to present reliable neuropsychological 

results to the state post-conviction court. Had counsel obtained valid 

neuropsychological test results, they would have found that, for example, Kiles had 

deficits related to memory and deficits indicative of impaired executive functioning. 

These results would have corroborated Kiles’s history of trauma and the resultant 

neural dysfunction. They would also have informed Kiles’s other experts as they 

explored issues such as the nature and extent of Kiles’s brain damage.187

Third, Droban and Roy retained psychiatrist Joseph Wu, M.D., to do 

neuropsychiatric imaging of Kiles’s brain. However, some of Dr. Wu’s quantitative 

results were unreliable. While there are clear signs of brain damage on the images, 

Dr. Wu used a diffusion tensor imaging (“DTI”) scan, which is very sensitive and 

specific to the scanner used. (PFR2 Dkt. 28 Ex. 25 at 5.) Therefore, any quantitative 

analysis of a DTI scan should be made using a comparison group that was imaged 

with the same scanner. Here, Dr. Wu did not do so. Instead, he compared Kiles’s 

images to images developed on a different scanner. Additionally, Dr. Wu failed to 

include in his report critical information about the comparison group whose DTI 

scans were used for Kiles’s comparison.188 (PFR2 Dkt. 28 Ex. 25 at 16.) 

Perhaps most concerning, Dr. Wu failed to comment upon signs of brain 

damage that are indisputable based on a visual review of Kiles’s brain scans. These 

 

187 State post-conviction counsel’s inability to get valid neuropsychological test 

results only exacerbated trial counsel’s failure to do the same years before, after 

inadequately preparing neuropsychologist Scott Sindelar, Ph.D., to evaluate Kiles. 

See supra, Claim 6. 

188 There is no information, for example, about whether the comparison group 

controlled for age. (PFR2 Dkt. 28 Ex. 25 at 16.) 

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mistakes should have been obvious to an expert in Dr. Wu’s field. While Dr. Wu 

was correct in concluding that Kiles has brain damage, some of his quantitative 

conclusions are suspect, and he failed to note some of the obvious damage revealed 

by the brain scans. Had Droban and Roy obtained a reliable and credible expert in 

the field, they would have been able to present more persuasive and credible 

findings of brain damage. 

Finally, Droban and Roy retained pharmacologist Edward French, Ph.D., to 

evaluate how Kiles’s polysubstance abuse affected his behavior. Dr. French’s report 

was not filed with the post-conviction petition. State post-conviction counsel 

maintained that this was because Dr. French would not say with certainty that, while 

under the influence of cocaine, Kiles could do routine acts like driving, but would 

still have significant impairment in decision-making ability and perception of 

reality. This was an inaccurate interpretation of Dr. French’s report, as the report 

explained that while cocaine use can cause psychotic symptoms and severely impair 

impulse control, it does not impair the ability to engage in organized activities like 

driving or speaking with others. Because post-conviction counsel failed to read their 

own expert’s report thoroughly and undertake basic, necessary follow-up with the 

expert, they failed to present additional, compelling mitigation information to the 

post-conviction court.189

Individually and cumulatively, these mistakes prevented Kiles from having 

an effective post-conviction review of his prior state proceedings. Kiles was thus 

prejudiced. See Martinez, 566 U.S. at 9; Strickland, 466 U.S. at 694. 

 

189 This was especially troubling in light of the pervasive effects of Kiles’s 

addictions and trial counsel’s ineffectiveness in failing to have a substance-abuse 

expert counter the State’s narrative that addiction is a choice. See supra, Claim 6. 

Further, despite counsel’s reservations about Dr. French’s report, they shared it with 

at least one other expert, who then relied on it to inform his own findings. (See 

PFR2 Dkt. 28 Ex. 25 at 2 (Dr. Wu discussing Dr. French’s conclusions).) 

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3. Post-conviction counsel failed to file a reply. 

Kiles’s second state post-conviction counsel failed to file a reply in support 

of Kiles’s petition for post-conviction relief, prejudicing his ability to have a full 

and effective review of meritorious claims raised in the opening brief. 

Kiles’s state post-conviction opening brief was filed on November 24, 2014. 

(ROA 1189 at 1.) The State’s response was filed on July 6, 2015. (ROA 1198 at 1.) 

On February 1, 2016, the date the reply brief was due, Kiles’s state post-conviction 

counsel filed a motion asking the court to allow Roy to withdraw and requesting a 

short extension of time. (ROA 1213 at 1–2.) The motion stated that Roy’s “personal 

and family circumstances have prevented her from drafting her portion of the 

reply.” (ROA 1213 at 2.) Additionally, “Roy’s inability to contribute as expected 

to the drafting of this reply has caused conflict between her and Ms. Droban, which 

is likely to impair the representation of Mr. Kiles from this time forward.” (ROA 

1213 at 3–4.) Droban stated in the motion she would be able to complete the petition 

with only a two-week extension of time, asking for a new filing date of February 

15, 2016. (ROA 1213 at 5.) 

Two days later, without ruling on either Roy’s request to withdraw or 

Droban’s request for a short extension of time, and thus without the benefit of a 

reply brief, the state post-conviction court issued its order denying post-conviction 

relief. (ROA 1214 at 1–2.) 

The failure to file a reply brief in Kiles’s case was not a strategic decision 

that would require deference. Indeed, the motion that Droban and Roy filed 

requesting a short extension of time explicitly acknowledged that Roy had provided 

ineffective assistance to Kiles. The failure to file a reply brief denied a full and 

effective review of Kiles’s state post-conviction claims. 

Further, the failure to file a reply was not a harmless error. The State argued 

in its response brief that claims were, for instance, procedurally precluded, or that 

they failed to meet the standard required for establishing a colorable claim. (ROA 

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1198 at 8–10.) Without the chance to reply, Droban and Roy were unable to refute 

these points and correct points of law and fact the State misstated in its response. 

Moreover, the 2003 ABA Guidelines provide that state post-conviction counsel 

have a duty to “seek to litigate all issues, whether or not previously presented, that 

are arguably meritorious under the standards applicable to high quality capital 

defense representation, including challenges to any overly restrictive procedural 

rules.” 2003 ABA Guideline 10.15.1(C). Therefore, under the prevailing standards, 

Droban and Roy were required to file a reply that not only argued all meritorious 

claims, but that also (1) refuted the State’s arguments regarding reclusion, and (2) 

explained where the State applied the law incorrectly. 

Droban and Roy’s deficient performance hindered the post-conviction 

court’s opportunity to adequately and effectively rule on Kiles’s claims. It also 

prejudiced Kiles, as there was a reasonable likelihood that with adequate briefing 

the post-conviction court would have found these claims colorable. See Strickland, 

466 U.S. at 694. 

B. Post-conviction counsel’s ineffectiveness excuses any procedural 

default of claims raised throughout this Petition. 

This Court may consider the merits of any claims that would otherwise be 

procedurally defaulted because Kiles can demonstrate cause and prejudice to 

overcome any default. See generally Edwards v. Carpenter, 529 U.S. 446, 451 

(2000); see also Smith v. Murray, 477 U.S. 527, 533 (1986). “Inadequate assistance 

of counsel at initial-review collateral proceedings may establish cause for a 

prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez, 

566 U.S. at 9. 

Kiles can demonstrate cause under Martinez because the underlying claims 

(i.e., the defaulted claims) are substantial, and post-conviction counsel’s 

performance was inadequate. See id. at 14. To show his claims are “substantial,” 

Kiles needs to demonstrate they have “some merit.” Id. at 12. In Martinez, the Court 

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specifically cited the standard for issuance of a Certificate of Appealability 

(“COA”). Id. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). By citing 

Miller-El’s discussion of COA standards, the Court indicated that the COA standard 

applies when determining if an underlying claim is “substantial.” Under the COA 

standard, “[t]he 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 (2000). Slack’s holding “would mean very little if 

appellate review were denied because the prisoner did not convince a judge, or, for 

that matter, three judges, that he or she would prevail.” Miller-El, 537 U.S. at 337. 

The COA standard is a low bar intended to screen out only the clearly frivolous 

claims, and therefore, any doubt whether Kiles has advanced a non-frivolous claim 

should be resolved in his favor. See Lambright v. Stewart, 220 F.3d 1022, 1025 (9th 

Cir. 2000). Further, “[a]lthough not dispositive,” a death sentence “is a proper 

consideration” in deciding whether to issue a COA. Id. (internal quotation marks 

omitted). 

Conducting a full merits review on the undeveloped record would frustrate 

the intention of Martinez to avoid the circumstance of a prisoner never receiving a 

proper hearing on a claim involving a “bedrock principle,” Martinez, 566 U.S. at 1, 

the right to effective trial counsel. The Ninth Circuit’s jurisprudence on Martinez 

supports these principles. In Detrich v. Ryan, a four-judge plurality explained that, 

where a prisoner demonstrates that his post-conviction counsel performed 

deficiently and failed to raise a “substantial” claim of ineffective assistance of trial 

counsel, the prisoner satisfies Martinez’s cause-and-prejudice standard. 740 F.3d 

1237, 1245 (9th Cir. 2013) (en banc). A petitioner shows cause by showing postconviction counsel was deficient and demonstrates prejudice by showing that the 

ineffective-assistance-of-trial-counsel claim is substantial. Id. at 1245–46. Judge 

Fletcher explained that, for the “narrow purpose” of showing cause under Martinez, 

a “prisoner need not show actual prejudice resulting from his [post-conviction] 

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counsel’s deficient performance, over and above his required showing that the trialcounsel [ineffectiveness] claim be ‘substantial[.]’” Id. The plurality reasoned that, 

if a petitioner “were required to show that the defaulted trial-counsel 

[ineffectiveness] claims fully satisfied Strickland . . . this would render superfluous 

the first Martinez requirement of showing that the underlying Strickland claims 

were ‘substantial[.]’” Id. at 1246. 

In Dickens v. Ryan, an eight-judge majority largely paralleled the plurality’s 

analysis in Detrich. 740 F.3d 1302 (9th Cir. 2014) (en banc). In Dickens, the Court 

instructed that the petitioner could show cause for default if he could show the first 

two Martinez elements: “(1) the [defaulted] claim is substantial and (2) his PCR 

counsel was ineffective under Strickland.” Id. at 1320. Thus, because Kiles’s postconviction counsel were inadequate and substantial claims went un-reviewed in 

state court, he can show cause to overcome any procedural default. 

The prejudice element of the cause-and-prejudice test remains settled. 

Generally, once the petitioner has shown cause, the Court should consider whether 

there is prejudice based on the underlying constitutional claim. See, e.g., Walker v. 

Martin, 562 U.S. 307, 315 (2011) (describing cause and prejudice as “cause for the 

delay in asserting his claims and actual prejudice resulting from the State’s alleged 

violation of his constitutional rights”); Smith, 477 U.S. at 533 (“actual prejudice 

resulting from the alleged constitutional violation” (quoting Wainwright v. Sykes, 

433 U.S. 72, 84 (1997))). 

Thus, this Court should determine whether there is a reasonable probability 

that the errors alleged undermined confidence in the outcome of the proceedings 

against Kiles. In undertaking this analysis, the Court should bear in mind that 

Martinez provided an equitable avenue for federal courts to review the merits of 

non-frivolous constitutional violations, and that evidentiary development is 

necessary to establishing cause and prejudice. See, e.g., Woods v. Sinclair, 764 F.3d 

1109, 1138 n.16 (9th Cir. 2014) (rejecting argument that “Pinholster

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and 2254(e)(2) categorically bar [habeas petitioners] from obtaining such a hearing 

or from presenting extra-record evidence to establish cause and prejudice for the 

procedural default”). 

The circumstances described above and those uncovered during habeas 

counsel’s investigation of this case demonstrate post-conviction counsel were 

ineffective. That ineffectiveness provides cause and prejudice sufficient to excuse 

the default of the claims raised in this Petition. 

C. Post-conviction counsel’s ineffectiveness entitles Kiles to relief. 

While acknowledging contrary authority, see Coleman v. Thompson, 501 

U.S. 772, 757 (1991), Kiles respectfully asserts that he is constitutionally entitled 

to the effective assistance of post-conviction counsel, and this Court should grant 

relief on this basis. Arizona’s post-conviction process was inadequate and 

ineffective to protect Kiles’s constitutional right to counsel, and his post-conviction 

counsel performed deficiently and prejudiced him. As explained in Martinez, 

Arizona prisoners must raise ineffectiveness of trial counsel in a petition for postconviction relief, not on direct appeal. See State v. Spreitz, 39 P.3d 525, 527 (Ariz. 

2002). Kiles’s post-conviction proceedings were his only opportunity to pursue 

ineffective-assistance claims (and, for that matter, any other claims that relied on 

more than the cold trial record). Thus, those post-conviction proceedings were a 

“first appeal as of right” as to those claims, and he should have a constitutional right 

to the effective assistance of counsel in those proceedings. See Evitts v. Lucey, 469 

U.S. 387, 396 (1985). 

In Arizona, post-conviction proceedings are part of an established, 

mandatory appellate process, initiated by the Arizona Supreme Court. See Ariz. R. 

Crim. P. 32.4(a) (on issuance of mandate affirming conviction and death sentence 

on direct appeal, clerk of court files automatic notice for post-conviction relief); 

State v. Bolton, 896 P.2d 830, 839 (Ariz. 1995) (explaining that Rule 32 proceeding 

is mandatory on affirmance of death sentence). Here, state post-conviction 

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proceedings are not only automatic on the affirmance of a death sentence; they are 

also a defendant’s only chance to present constitutional claims based on evidence 

outside the record, including the ineffective assistance of trial and appellate counsel. 

They are, thus, appeals “as of right” for these claims, and the State must provide 

the effective assistance of counsel. See Jackson v. State, 732 So. 2d 187, 190 (Miss. 

1999) (“The reality is that post-conviction efforts, though collateral, have become 

an appendage, or part, of the death penalty appeal process at the state level.”). By 

not assuring competent counsel for these claims, post-conviction review of the 

competence of capital attorneys becomes a “meaningless ritual.” See Evitts, 469 

U.S. at 394 (internal quotation marks omitted); see also Jackson v. Weber, 637 

N.W.2d 19, 24–25 (S.D. 2001) (“If the defense attorney was ineffective in the 

original criminal proceeding and habeas counsel was thereafter ineffective in 

ferreting out the invalidity of the conviction, we may never know if the convicted 

person had a fair trial or, God forbid, was actually innocent.”). 

Further, because Arizona entitles a defendant to the appointment of state 

post-conviction counsel and provides standards in an attempt to ensure counsel’s 

competence, due process requires that counsel be effective. Implementation of this 

statutorily provided right must comport with due process: “when a State opts to act 

in a field where its action has significant discretionary elements, it must nonetheless 

act in accord with the dictates of the Constitution—and, in particular, in accord with 

the Due Process Clause.” Evitts, 469 U.S. at 401. Due process demands that when 

a statutory right to counsel is established, the concomitant right to effective 

assistance of counsel must also be recognized; otherwise, the statutory right would 

be meaningless. See id. at 396 (“[A] party whose counsel is unable to provide 

effective representation is in no better position than one who has no counsel at all.”). 

Other state courts have recognized that, because their state statutes provide 

for counsel in post-conviction proceedings, due process demands that counsel 

perform effectively: “[W]e will not presume that our legislature has mandated some 

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‘useless formality’ requiring the mere physical presence of counsel as opposed to 

effective and competent counsel.” Jackson, 637 N.W.2d at 23. Their reasoning has 

been based on the well-established principle that the right to counsel means the right 

to the effective assistance of counsel. The Due Process Clause of the Constitution 

ensures fundamental fairness. If Arizona ignores the dictates of its own statute and 

appoints incompetent counsel, the petitioner is entitled to relief. Cf. Lozada v. 

Warden, 613 A.2d 818, 822 (Conn. 1992) (“[F]undamental fairness opens the door 

for relief by habeas corpus when the state, in discharging its statutory duty, appoints 

incompetent counsel.”). 

In sum, Kiles’s post-conviction counsel were ineffective. This deprived him 

of his constitutional rights to due process and the effective assistance of counsel, 

and also provides cause and prejudice to overcome the default of any claims raised 

in this Petition. Kiles is entitled to evidentiary development and relief. 

Claim Fifteen 

Trial counsel was ineffective for failing to file a motion to remand 

because of errors rendering the grand-jury proceedings 

unconstitutional. 

Kiles’s counsel’s ineffective assistance in failing to file a motion to remand 

for new grand-jury proceedings deprived Kiles of his rights to counsel, reliable 

proceedings, due process, and equal protection in violation of the Sixth, Eighth, and 

Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

reference all facts, allegations, and arguments made elsewhere in this Petition. 

Kiles did not present this claim in state court. Kiles alleges he can overcome 

any default by showing cause and prejudice, as the ineffective assistance of Kiles’s 

state post-conviction counsel in failing to raise this claim constitutes cause for the 

default and resulted in prejudice to Kiles.190 See Martinez v. Ryan, 566 U.S. 1, 9 

 

190 Kiles’s state post-conviction counsel did raise a standalone challenge to the 

grand-jury proceedings, but should have anticipated that the court would deem that 

challenge defaulted. (See ROA 1214 at 1 (“The court rejects Defendant’s arguments 

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(2012); Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Kiles will 

demonstrate at an evidentiary hearing that state post-conviction counsel fell below 

the standards of minimally competent capital post-conviction attorneys when they 

failed to raise this meritorious claim. Because this claim has not been adjudicated 

by the Arizona state courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) 

do not apply to this Court’s review, and the Court may consider the merits of the 

claim de novo. 

“Pretrial investigation and preparation are the keys to effective representation 

of counsel.” United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983); see also 

Strickland, 466 U.S. at 684 (guaranteeing defendants the effective assistance of 

counsel under the Sixth Amendment); supra, Claim 2 (discussing Strickland

standard). Filing relevant pretrial motions—particularly one that counsel himself 

describes as significant—constitutes rudimentary trial preparation. Failure to file 

such motions “is not a strategic decision.” Strickland, 466 U.S. at 689–90; Wiggins 

v. Smith, 539 U.S. 510, 521–22 (2003); see also Kimmelman v. Morrison, 477 U.S. 

365, 384 (1986) (finding counsel ineffective for failing to file a pretrial motion). It 

is deficient where counsel’s decisions result from inattention instead of reasoned 

judgment. See Wiggins, 539 U.S. at 534. Further, under the 1989 ABA Guidelines, 

counsel were obligated to examine a case’s charging documents to identify “any 

issues, constitutional or otherwise” that could be raised to attack them. 1989 ABA 

Guideline 11.4.1(D)(1)(C). The 1989 ABA Guidelines also include that counsel 

should consider pretrial motions related to “potential defects in the charging 

process.” 1989 ABA Guideline 11.5.1(B)(3); see also 1989 ABA Guideline 

11.5.1(B) (instructing counsel to consider all pretrial motions potentially available). 

 

regarding the grand jury composition and the testimony of Imogene Kiles before 

the grand jury. Those claims are precluded under the rule.”).) 

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A. Counsel planned to file a motion to remand to address 

improprieties with the grand-jury session and the resulting 

indictment. 

As early as fall 1998, Kiles’s trial counsel Greg Clark planned to file a motion 

to remand for a new grand-jury proceeding, based largely on the unconstitutional 

elements of the grand-jury proceedings described below. (Tr. Oct. 30, 1998 at 47; 

PFR2 Dkt. 21 Ex. 6 at 1–11.) In October 1998, the court ordered that the motion be 

filed within a reasonable time. (Tr. Oct. 30, 1998 at 47.) Kiles’s counsel during his 

first state post-conviction proceedings had extensively investigated the underlying 

support for the motion; it was clear the claims were well-supported. (See PFR2 Dkt. 

23 Ex. 19; PFR2 Dkt. 27 Ex. 22; ROA 225 Ex. 55; ROA 225 Ex. 63; Tr. Feb. 20, 

1996 at 40–43, 47–49, 53–55, 71–75, 90–96; Tr. Feb. 22, 1996 at 225–26.) Indeed, 

Clark asked for and received multiple extensions of time to file a motion to remand 

based on challenges to the grand-jury proceedings. (Tr. Dec. 9, 1998 at 4; Tr. Jan. 

22, 1999 at 11.) 

In February 1999, the parties stipulated to extending the deadline for Clark 

to file a motion to remand. (ROA 397 at 1.) Clark exchanged drafts of this motion 

with Mary Boyte, who was briefly his co-counsel and who had been Kiles’s counsel 

in his first state post-conviction proceedings.191 (PFR2 Dkt. 21 Ex. 6 at 1–11.) 

In April 1999, Clark stated at a status hearing that he and the prosecutor were 

going to sit down to discuss the motion and potentially enter into a stipulation to 

remand. (Tr. Apr. 2, 1999 at 4.) He said: “I thought the issues we have developed 

in that regard are significant to the point where I think that’s justified and it may be 

fruitful and it would certainly save a tremendous amount of court time just from 

that standpoint.” (Tr. Apr. 2, 1999 at 4.) In July 1999, Kiles filed a pro per motion 

 

191 Second state post-conviction counsel attached one of these drafts as an exhibit 

to Kiles’s second post-conviction petition, but Boyte had urged Clark to include 

additional claims not listed in that draft, including racial discrimination in grandjury selection. (See PFR2 Dkt. 21 Ex. 6 at 1–11.) 

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complaining that the motion to remand had not yet been filed, and he did not know 

why. (ROA 407 at 7.) Also in July 1999, Boyte filed a motion to withdraw as 

counsel based on Clark’s incompetent representation and failure to communicate 

with her and Kiles. (ROA 409 at 2.) This was based in part on the fact that she had 

prepared the motion to remand, but Clark had not filed it—she did not know and 

could not determine why. (Tr. Aug. 6, 1999 at 15.) In October 1999, Kiles stated at 

a status hearing that he did not know what was happening with the motion, though 

he had seen a draft. (Tr. Oct. 8, 1999 at 75.) 

Although his co-counsel had sent him a draft, Clark never filed this motion. 

The failure to file this motion was not based on reasoned strategic judgment.

Strickland, 466 U.S. at 689–90. 

B. Counsel was deficient in failing to file a motion to remand based 

on the fact that a grand juror had prior knowledge of the facts of 

the crime. 

Clark was ineffective for failing to file a motion to remand for a new 

indictment because one of the grand jurors knew about the facts of the crime from 

Valerie Gunnel’s brother-in-law. 

A defendant has a right to be “prosecuted only ‘on the basis of the facts 

presented to the grand jury. . . .’” United States v. Du Bo, 186 F.3d 1177, 1179 (9th 

Cir. 1999) (quoting United States v. Rosi, 27 F.3d 409, 414 (9th Cir. 1994)). It 

violates due process where a defendant is tried “on an indictment returned by a 

biased grand jury.” United States v. Samango, 607 F.2d 877, 881 (9th Cir. 1979) 

(overturning an indictment where the prosecutor’s conduct created a biased jury). 

Further, the prosecutor has a duty to ensure the “wise exercise” of the grand jury’s 

investigatory power. Hoffman v. United States, 341 U.S. 479, 485 (1951). While 

prosecutors have broad discretion before a grand jury, “this prosecutorial discretion 

is not boundless.” United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir. 1986) 

(quoting United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983)). “The 

prosecutor may not circumvent the constitutional safeguard of a grand jury by 

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overreaching conduct that impinges on the grand jury’s autonomy and interferes 

with its exercise of unbiased judgment.” De Rosa, 783 F.2d at 1404. 

Kiles’s grand-jury proceedings violated his rights because one grand juror 

knew the facts of the crime before serving on the grand jury. At the start of the 

grand-jury hearing, after mentioning the victims’ names, Yuma County Attorney 

Phillip Hall asked the grand jurors if they had any reason to believe they could not 

be fair and impartial. (Tr. Feb. 21, 1989 at 9.) One grand juror raised his hand and 

explained that he worked with Gunnel’s brother-in-law, Nate Bailey; upon further 

prompting, he added that Bailey had told him about the crime a few days earlier. 

(Tr. Feb. 21, 1989 at 9.) Hall pressed on, asking if he had any conversations with 

Bailey about the alleged evidence or what may have occurred and who was 

responsible. (Tr. Feb. 21, 1989 at 9–10.) The grand juror responded that Bailey had 

told him “what had happened to the woman; the injuries she received.” (Tr. Feb. 

21, 1989 at 10.) Instead of removing this man from the grand jury based on his 

extraneous knowledge, Hall asked him: 

So, I guess, I have got to come back to you and ask you 

whether or not you can lay aside any conversations that you 

may have had with Mr. Bailey and determine based solely 

upon the evidence presented here whether or not probable 

cause exists to believe that Mr. Kiles or anyone else for that 

matter should be indicted for the death of Mrs. Gunnell 

[sic]. 

(Tr. Feb. 21, 1989 at 10.) The grand juror stated that he did not have any prejudice, 

and Hall allowed him to remain. (Tr. Feb. 21, 1989 at 10.) This was an abuse of 

prosecutorial discretion. Hall should not have allowed that grand juror to consider 

the indictment, given that he had first-hand outside information. Instead, Hall 

perfunctorily asked the grand juror if he could lay it aside, and the juror agreed. 

Where a juror is biased, it is not sufficient for him to perfunctorily agree that he can 

be fair. See Morgan v. Illinois, 504 U.S. 719, 735 (1992). 

 It was below prevailing professional norms for counsel to fail to file a motion 

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to remand because a grand juror had outside knowledge of the crime, which resulted 

in Kiles being charged based on facts outside of the grand jury presentation. Clark’s 

stated plan to file the motion, and his assertion that he thought there was strong 

support for it, further underscore this.192 Had counsel filed the motion to remand, 

the constitutionally deficient indictment would have required reversal. See Du Bo, 

186 F.3d at 1179. “Failing to enforce this requirement would allow a court to ‘guess 

as to what was in the minds of the grand jury at the time they returned the 

indictment.’” Id. (quoting United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979)). 

Clark’s failure thus prejudiced Kiles. 

C. Counsel was deficient in failing to file a motion to remand based 

on the fact that the State knew that Imojean Kiles was an 

incompetent witness during her grand-jury testimony. 

 The grand-jury proceedings were further infected by prosecutorial 

misconduct because the prosecutor knew that a central witness, Kiles’s mother 

Imojean Kiles, was an incompetent witness. (Tr. Feb. 21, 1989 at 52–83.) The 

morning of her grand-jury testimony, Imojean took two nerve pills and shots of 

brandy. (PFR2 Dkt. 23 Ex. 19 at 9.) She arrived at court, but she was told to return 

in the afternoon, so she went home and drank more brandy. (PFR2 Dkt. 23 Ex. 19 

at 9.) Before taking the stand that afternoon, Imojean told Hall and the lead detective 

on the case, Detective Brian Rodgers, that she needed to take a nerve pill. Hall gave 

her a glass of water, and he and Rodgers watched her take the pill. (PFR2 Dkt. 23 

Ex. 19 at 9.) In an affidavit written for the first state post-conviction proceedings, 

she explained her resulting mental state on the stand: “I was really out of it. I was 

so confused. I had trouble thinking clearly. I didn’t understand some of the 

questions. I said things I knew wasn’t right but I was so out of it I no longer knew 

what was right anymore. I don’t remember much of it.” (PFR2 Dkt. 23 Ex. 19 at 9–

10.) Imojean Kiles’s friend Geraldine Dickey accompanied her to the grand-jury 

 

192 It was also important for Clark to file pretrial motions to strengthen the defense’s 

position during the ongoing plea negotiations. 

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proceedings and swore in an affidavit to Imojean Kiles’s drinking, pill-taking, and 

resultant incompetence on the stand. (PFR2 Dkt. 27 Ex. 22 at 2.) 

 Imojean Kiles was a key witness at the grand-jury proceedings. She testified 

about Kiles’s admission to her that he killed Valerie Gunnel. (Tr. Feb. 21, 1989 at 

52–60.) However, her testimony reflected that she was impaired and confused on 

the stand. (E.g., Tr. Feb. 21, 1989 at 63–64.) At the second grand-jury hearing in 

April 1989, the prosecutor gave the grand jurors a transcript of the prior 

proceedings, including Imojean Kiles’s testimony. (Tr. Apr. 4, 1989 at 31.) 

 As discussed above, a prosecutor has a duty to ensure that justice is done at 

a grand-jury proceeding. He violated this duty—and Kiles’s due process rights—

when he put Imojean Kiles on the stand to testify in front of the grand jury, knowing 

that she was an incompetent witness. Clark was deficient for failing to file the 

motion to remand on this basis when he knew that the motion was “significant” and 

when his failure had no strategic justification. (Tr. Apr. 2, 1999 at 4.) This 

prejudiced Kiles, as it is probable that the cumulative errors at his grand-jury 

proceedings would have warranted a remand. 

D. Counsel was ineffective for failing to file a motion to remand 

because Kiles was denied his right to a grand jury free from 

discrimination. 

Given prevailing professional norms and well-known constitutional 

precedent, it was unreasonable for counsel to fail to file a motion to remand, because 

Kiles was charged by a jury selected on the basis of race. See Strickland, 466 U.S. 

at 688. 

It violates the Equal Protection Clause of the Fourteenth Amendment where 

there is racial discrimination in the grand-jury selection process. Even a conviction 

cannot “cure the taint attributable to a charging body selected on the basis of race.” 

Vasquez v. Hillery, 474 U.S. 254, 264 (1986). The Supreme Court has established 

“mandatory reversal” in this circumstance. Id. at 264. The Court has emphasized 

that, “having found discrimination in the selection of a grand jury, we simply cannot 

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know that the need to indict would have been assessed in the same way by a grand 

jury properly constituted.” Id. A defendant need not be the same race as excluded 

jurors to challenge a grand jury infected by discrimination. Campbell v. Louisiana, 

523 U.S. 392, 398 (1998) (“Regardless of his or her skin color, the accused suffers 

a significant injury in fact when the composition of the grand jury is tainted by 

racial discrimination.”) 

In Castaneda v. Partida, 430 U.S. 482 (1977), the Supreme Court articulated 

a three-part test to evaluate allegations of equal-protection violations in the context 

of grand-jury selection: 

The first step is to establish that the group is one that is a 

recognizable, distinct class, singled out for different 

treatment under the laws, as written or as applied. Next, the 

degree of underrepresentation must be proved, by 

comparing the proportion of the group in the total 

population to the proportion called to serve as grand jurors. 

. . . Finally, as noted above, a selection procedure that is 

susceptible of abuse or is not racially neutral supports the 

presumption of discrimination raised by the statistical 

showing. Once the defendant has shown substantial 

underrepresentation of his group, he has made out a prima 

facie case of discriminatory purpose and the burden then 

shifts to the State to rebut that case. 

Id. at 494–95 (internal citations omitted). Racial discrimination in grand-jury 

selection may be inferred via statistical underrepresentation combined with 

subjective selection procedures. Id. 

 A Yuma County grand jury indicted Kiles in February and April 1989. (ROA 

1; CR89-15577 ROA 1.) Nearly the same grand jury panel indicted him both times. 

(Tr. Apr. 4, 1989 at 3–4.) At the time of the 1990 U.S. census, Yuma County was 

2.9% African-American and 40.6% “Hispanic origin.” See U.S. Bureau of the 

Census, 1990 Census: Arizona, Table 5: Race and Hispanic Origin, 

https://www2.census.gov/library/publications/decennial/1990/cp-1/cp-1-4.pdf at 

29. The February grand jury included three individuals of Hispanic origin out of 15 

grand jurors, or 20% of the panel. (ROA 225 at 4–5.) The April grand jury included 

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three individuals of Hispanic origin out of 15 grand jurors, or 13% of the panel. 

(ROA 225 at 5.) No grand juror in either February or April 1989 was African 

American. (ROA 225 at 4.) 

The grand-jury selection procedure at the time of Kiles’s indictments resulted 

in a significant underrepresentation of non-white grand jury members. The selection 

process was subject to abuse because of an excess of unsupervised discretion. (ROA 

225 Ex. 63 at 2.) The Jury Commissioner selected prospective juror names from 

voter-registration and Department of Motor Vehicles lists and mailed 

questionnaires. (ROA 225 Ex. 63 at 2.) Whenever those letters were returned due 

to a bad address, no one attempted to locate that individual. (ROA 225 Ex. 55 at 1.) 

Similarly, no one followed up with people who did not return their questionnaires. 

(ROA 225 Ex. 55 at 1.) The Jury Commissioner reviewed juror questionnaires and 

had total discretion to remove names from consideration based on their responses. 

(ROA 225 Ex. 63 at 2.) The prospective juror questionnaires were destroyed after 

90 days, without any possibility for review by litigants or judicial officers. (ROA 

225 Ex. 63 at 3.) Of the 60 potential grand jurors called to court, the judge and 

county attorney selected 16 grand jurors and four alternates. (ROA 225 Ex. 63 at 

3.) It is unclear what, if any, criteria they used. 

 It is improper to allow a jury commissioner unfettered discretion in selecting 

potential grand jurors. When statistics demonstrate dramatic under-representation 

of a suspect class, together with a selection procedure that systematically excludes 

a great proportion of those classes, that discretion must be challenged. See 

Castaneda, 430 U.S. at 482 (holding it unconstitutional where statistical 

underrepresentation of Mexican-Americans in grand-jury services was the result of 

“highly subjective” selection procedures). It is difficult to imagine a process more 

susceptible to abuse than one in which not only the Jury Commissioner, but also the 

defendant’s prosecutor, have unbridled discretion to exclude potential grand jurors. 

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The facts of Kiles’s case are very similar to those in Castaneda.

193

 It was unreasonable and fell below prevailing professional norms for counsel 

to fail to challenge this unconstitutional selection process. Vasquez and Castaneda

were both well-known, longstanding precedent by the time of Kiles’s case. The 

need to examine the record for any instances of racial discrimination should have 

been clear to competent counsel. Further, Clark was on notice of this concern 

because the first state post-conviction counsel had raised this claim in their petition. 

(ROA 225 at 3–9; ROA 268 at 5–21.) The 1999 Arizona Capital Case Defense 

Manual, which counsel had, also instructed counsel to investigate the composition 

of the grand and petit venires. In addition, correspondence shows that Mary Boyte 

urged Clark to include this challenge in his motion to remand. (PFR2 Dkt. 21 Ex. 6 

at 1–11.) In February and March 1999, she sent him the materials from the first 

state post-conviction proceedings and urged him to include this challenge. 

 Counsel’s failure to file a motion to remand based on the grand jury’s racially 

discriminatory composition prejudiced Kiles. Had counsel challenged the grand 

jury composition, “there is a reasonable probability that the claim [counsel] failed 

to raise at trial would have prevailed, either at trial or on appeal.” Doe v. Ayers, 782 

F.3d 425, 432 (9th Cir. 2015) (citing Strickland, 466 U.S. at 694). Then, had Kiles 

prevailed at trial or on appeal, his indictment would have been vacated. See 

Vasquez, 474 U.S. at 264. Kiles was therefore prejudiced by his counsel’s deficient 

performance. 

E. Conclusion. 

In sum, Clark provided ineffective assistance by failing to file a motion to 

 

193 The state post-conviction court ruled in 2016 that Kiles had not shown a 

colorable claim as to discriminatory intent in grand jury composition. (ROA 1214 

at 1.) This ruling on the merits is contrary to and/or an unreasonable application of 

clearly established federal law under Castaneda. See 28 U.S.C. § 2254(d)(1). To 

the extent that the state court made a determination of fact, that too was 

unreasonable, as described above. See 28 U.S.C. § 2254(d)(2). 

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remand for new grand-jury proceedings. He planned to file the motion and knew 

that it was “significant.” (Tr. Apr. 2, 1999 at 4.) His failure to do so was not based 

on reasoned strategic judgment, but was instead inexplicable and unjustifiable. Had 

Clark filed and argued this motion, he likely would have succeeded, based on the 

facts described above. Further, it would have put him in an advantageous position 

to settle—particularly important because the crime had occurred a decade earlier, 

and Kiles was eager to settle for a life sentence. Where counsel, like Clark, performs 

ineffectively, it undermines the reliability of the proceedings. Strickland, 466 U.S. 

at 693; see also Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (joint 

opinion of Stewart, Powell, and Stevens, JJ.). 

Claim Sixteen 

Counsel were ineffective for failing to ensure that critical portions 

of the record were preserved and recorded. 

 Trial counsel’s failure to ensure that all proceedings were recorded and that 

all crucial documents were preserved hindered Kiles’s ability to effectively 

challenge his convictions and sentences, violating his rights under the Sixth, Eighth, 

and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by 

specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

Kiles did not present this claim in state court. Kiles can overcome any default 

by showing cause and prejudice, as the ineffective assistance of Kiles’s state postconviction counsel in failing to raise this claim constitutes cause for the default and 

resulted in prejudice to Kiles. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984). Kiles will demonstrate at an 

evidentiary hearing that state post-conviction counsel fell below the standards of 

minimally competent capital post-conviction attorneys when they failed to raise this 

meritorious claim. Because this claim has not been adjudicated by the Arizona state 

courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this 

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Court’s review, and the Court may consider the merits of the claim de novo. 

A. Trial counsel failed to preserve evidence needed for proper 

consideration of Kiles’s claims on appeal. 

 Kiles’s counsel made a practice of conducting proceedings off the record and, 

as a result, failed to preserve critical portions of the record for subsequent review. 

In the capital context, where heightened reliability is required, see Woodson v. 

North Carolina, 428 U.S. 280, 305 (1976) (joint opinion of Stewart, Powell, and 

Stevens, JJ.), the Supreme Court has “emphasized repeatedly the crucial role of 

meaningful appellate review in ensuring that the death penalty is not imposed 

arbitrarily or irrationally.” Parker v. Dugger, 498 U.S. 308, 321 (1991); see also 

Zant v. Stephens, 462 U.S. 862, 890 (1983) (recognizing mandatory appellate 

review as “an important procedural safeguard . . . to avoid arbitrariness.”) 

Counsel’s failure to ensure a complete record crippled Kiles’s ability to seek 

meaningful appellate review. This was deficient and prejudiced Kiles. See 

Strickland, 466 U.S. at 694; see also 2003 ABA Guideline 10.7 (“Counsel at every 

stage have an obligation to satisfy themselves independently that the official record 

of the proceedings is complete and to supplement it as appropriate.”). 

1. Trial counsel denied Kiles’s right to be present at 

unrecorded proceedings. 

 First, during pretrial proceedings, Kiles specifically informed his trial 

counsel that he would like to be present for any off-record conferences between the 

State, defense counsel, and the court. (Tr. Aug. 6, 1999 at 14.) Kiles was concerned 

that these informal meetings were not recorded and could not be challenged, so he 

requested that he at least be present for them. (Tr. Aug. 6, 1999 at 13–14.) But 

Kiles’s attorney refused the request and indicated that he would continue to have 

off-the-record discussions. (Tr. Aug. 6, 1999 at 14.) 

 Kiles’s request was well-founded. For example, Kiles expressed concern to 

counsel about a minute entry dated October 7, 2002, where defense counsel waived 

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his presence and no transcript was made of the proceedings. (ROA 584 at 1.) 

Though the minute entry states “no real substance [was] being discussed,” the 

discussion was likely about how Kiles’s sentencing would move forward after Ring 

v. Arizona, 536 U.S. 584 (2002), in which the Supreme Court had found Arizona’s 

death-penalty scheme unconstitutional just a few months earlier. (ROA 584 at 1.) 

This conference may have contained critical information for appellate counsel. 

Counsel were ineffective both for an unauthorized waiver of his client’s rights, see 

Claim 1, supra, and for failing to make a record such that appellate counsel could 

ensure a meaningful review of the proceedings. See Strickland, 466 U.S. at 694. 

2. Trial counsel failed to record and retain evidence during 

voir dire. 

 Defense counsel failed to maintain a record and preserve evidence necessary 

to allow Kiles effective review on appeal of his jury selection. During voir dire at 

the guilt phase, defense counsel erred in failing to add a question about the 

prospective jurors’ race to the State’s questionnaire. (CR89-15577 ROA 169 at 2–

11.) Without a question regarding the race of the juror, appellate counsel could not 

determine whether the State sought to remove jurors by stipulation or peremptory 

challenge based on race, which would be impermissible under Batson v. Kentucky, 

476 U.S. 79 (1986). Trial counsel then failed to preserve the guilt-phase juror 

questionnaires, frustrating appellate counsel’s ability to determine if there were 

other errors that needed to be raised to the Arizona Supreme Court. 

 Compounding these hindrances to effective review of voir dire, Kiles’s trial 

counsel failed to note on the record why each juror was excluded. The majority of 

prospective jurors, 41 in the guilt phase, were removed by stipulation between 

Kiles’s counsel and the State, without any reason on the record justifying removal. 

(ROA 456 at 1.) In the penalty phase, 23 prospective jurors were struck for cause, 

though even the fact of their removal, let alone the reasons underlying removal, 

appears nowhere on the record during jury selection. (ROA 895; Tr. Mar. 6, 2006; 

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Tr. Mar. 7, 2006; Tr. Mar. 8, 2006; Tr. Mar. 15, 2006; Tr. Mar. 16, 2006.) Thus, 

Kiles’s appellate lawyers lacked critical information necessary to challenge his 

convictions and sentence, prejudicing his appeals. 

 Defense counsel was ineffective for failing to maintain a complete and proper 

record of the voir dire proceedings in both the guilt and penalty phase, including 

why each juror was excluded. These errors prevented Kiles from effectively raising 

claims regarding the death-qualification of jurors or other potential voir dire issues. 

3. Trial counsel failed to ensure bench conferences were on the 

record. 

 On numerous occasions in the state-court proceedings, the court and counsel 

held off-the-record discussions without making a record of, in many instances, what 

was discussed or argued or, in other instances, the reasons specific decisions were 

made. During the guilt phase, a review of pretrial and trial transcripts reveals at 

least 15 separate instances of unrecorded bench conferences between the trial judge 

and counsel. (See Tr. July 7, 2000 at 139; Tr. July 10, 2000 at 82; Tr. July 10, 2000 

at 140; Tr, July 10, 2000 at 174; Tr. July 11, 2000 at 62; Tr. July 11, 2000 at 83; Tr. 

July 12, 2000 at 9; Tr. July 12, 2000 at 30; Tr. July 12, 2000 at 82 (“THE COURT: 

We are back on the record. We talked about several things.”); Tr. July 13, 2000 at 

75; Tr. July 17, 2000 at 144; Tr. July 17, 2000 at 224; Tr. July 18, 2000 at 31 (“THE 

COURT: Okay. If you will stick around, we will informally go over the forms of 

verdict. MS. VANDREUMEL: Thank you, Judge.”); Tr. July 20, 2000 at 2; Tr. July 

20, 2000 at 3.) The specific contents of these bench conferences is, of course, 

unknown, but a review of the record surrounding the conferences suggests that they 

included discussions regarding whether the State could impeach its own witnesses, 

whether testimony from the victim was hearsay and should be excluded (the 

testimony was subsequently given), objections to juror questions, an issue with the 

jury verdicts, and various unknown subjects. 

 Counsel were no more effective at ensuring that a complete record of 

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proceedings was made during Kiles’s penalty phase. There were again numerous 

off-the-record bench conversations. (See Tr. Mar. 20, 2006 at 178; Tr. Mar. 21, 

2006 at 66; Tr. Mar. 21, 2006 at 98; Tr. Mar. 22, 2006 at 7; Tr. Mar. 22, 2006 at 27; 

Tr. Mar. 22, 2006 at 79; Tr. Mar. 23, 2006 at 31; Tr. Mar. 23, 2006 at 60; Tr. Mar. 

29, 2006 at 54; Tr. Apr. 3, 2006 at 6; Tr. Apr. 3, 2006 at 76; Tr. Apr. 4, 2006 at 3–

4; Tr. Apr. 4, 2006 at 5–6; Tr. Apr. 12, 2006 at 30; Tr. Apr. 26, 2006 at 23; Tr. Apr. 

27, 2006 at 50; Tr. May 11, 2006 at 87–88; Tr. May 16, 2006 at 45.) Some of these 

bench conferences may have been about juror questions, hearsay objections, and 

the admission of exhibits, but for the majority of these off-the-record discussions, 

their content is entirely opaque. Because the preserved record was so far from 

complete, appellate counsel had little idea what happened at numerous important 

points during the proceedings below. This prevented Kiles from receiving effective 

assistance of appellate counsel and meaningful appellate review of key issues raised 

at trial. 

4. Trial counsel failed to ensure conferences on jury 

instructions were on the record. 

 One example from the guilt-phase trial highlights the difficulties created by 

a Swiss-cheese record. There were a series of informal conferences about the jury 

instructions at the guilt-phase proceeding. The judge stated on the record, “The 

record will show that I have been meeting informally with counsel and the 

defendant has been here regarding the process of arriving at jury instructions that 

are still in progress, but I think we can make a record at this point.” (Tr. July 18, 

2000 at 2.) However, defense counsel were ineffective for not ensuring the 

conferences themselves were on the record. Without a complete record, appellate 

counsel was unable to effectively challenge any issues raised regarding jury 

instructions. 

 These off-the-record conferences may have ultimately led to a problem with 

the verdict. After the judge received the verdict from the jury, he announced: 

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THE COURT: Ladies and gentlemen, the possibility 

exists—and I and the attorneys aren’t sure that you 

misunderstood the numerical part of the calculations of the 

verdict, so what I’m going to do is ask you to go back down 

to the jury room and the attorneys and I will meet and 

discuss it further. We may be resubmitting that portion of 

the verdict to you for your further deliberation, because our 

instructions may not have been all that great. I’ll have you 

go back down with Ms. Robbins and go back down to the 

jury room and we’ll proceed. Counsel wish to meet in 

chambers to discuss this? 

MR. CLARK: Yes. 

(Tr. July 20, 2000 at 3.) A problem with jury instructions and verdicts in the guiltphase proceeding would be a proper issue for appellate review. This is especially 

critical in a capital case, where the reliability of verdicts is of utmost importance. 

Unfortunately, defense counsel’s ineffectiveness at ensuring the conferences were 

on the record before and after the verdict forms were submitted to the jury precluded 

meaningful review of the issue. 

B. Counsel’s ineffectiveness for failing to ensure a complete record 

violated Kiles’s rights. 

 “As any effective appellate advocate will attest, the most basic and 

fundamental tool of his profession is the complete trial transcript, through which 

his trained fingers may leaf and his trained eyes may roam in search of an error, a 

lead to an error, or even a basis upon which to urge a change in an established and 

hitherto accepted principle of law.” Hardy v. United States, 375 U.S. 277, 288 

(1964) (Goldberg, J., concurring). The Supreme Court has made clear that an 

indigent defendant has both due-process and equal-protection rights to the “basic 

tools” of a constitutionally complete and adequate judicial review—a 

constitutionally effective attorney acting as an advocate, e.g., Strickland, 466 U.S. 

at 684–85; Evitts v. Lucey, 469 U.S. 387 (1985), and a record that will permit 

meaningful, effective presentation of his claims, e.g., Griffin v. Illinois, 351 U.S. 

12, 18–19 (1956). 

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 In the death-penalty context, the opportunity to have “meaningful appellate 

review” is especially crucial “in ensuring that the death penalty is not imposed 

arbitrarily or irrationally.” Parker, 498 U.S. at 321. There must be a “‘record of 

sufficient completeness,’ for adequate consideration of the errors assigned.” Draper 

v. Washington, 372 U.S. 487, 497 (1963) (quoting Coppedge v. United States, 369 

U.S. 438, 446 (1962)). In the absence of a “complete verbatim transcript,” a “record 

of sufficient completeness” must include an “equivalent report of the events at trial 

from which the appellant’s contentions arise.” Mayer v. City of Chicago, 404 U.S. 

189, 194 (1971) (quoting Draper, 372 U.S. at 495–96). 

 Because Kiles has no way of knowing what was discussed at the many 

unrecorded bench conferences throughout his proceedings, he could not previously 

and cannot here raise constitutional claims arising out of those discussions. For 

example, courts have held that prejudicial comments made by the judge during a 

bench conference and overheard by the jury could be cause for a mistrial. See, e.g.,

Coast-to-Coast Stores, Inc. v. Womack-Bowers, Inc., 818 F.2d 1398, 1402 (8th Cir. 

1987) (stating that the district court judge’s comments made during a bench 

conference, “if overheard by the jury, constituted prejudicial error” and would have 

been grounds for mistrial if properly presented to the district court (emphasis 

omitted)). But, on this incomplete and insufficient record, there is no way of 

knowing whether this or other errors of constitutional magnitude occurred during 

Kiles’s trial. Trial counsel’s failure to object to the lack of recording was deficient 

performance. See Strickland, 466 U.S. at 688. Further, trial counsel’s failure to 

maintain a complete and proper record of the voir dire proceedings, including why 

each juror was excluded, has prevented Kiles from effectively raising certain claims 

regarding the death-qualification of jurors, the exclusion of jurors based on race in 

his guilt-phase proceedings under Batson, 476 U.S. at 79, and other potential issues 

related to voir dire. (See, e.g., Tr. Mar. 8, 2006 at 2–3); see also Claim 4, supra. 

 Throughout Kiles’s proceedings, trial counsel consistently, and therefore 

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ineffectively, failed to preserve these crucial pieces of the record. This prejudiced 

Kiles, because it has deprived and continues to deprive him of an adequate and 

complete review and undermines confidence in the reliability of his proceedings. 

See Strickland, 466 U.S. at 694. Kiles is therefore entitled to relief. 

Claim Seventeen 

Capital punishment is per se cruel and unusual. 

Capital punishment is per se cruel and unusual, in violation of the Eighth and 

Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

reference all facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 94.) The Arizona 

Supreme Court noted in the Appendix to its Opinion that this claim was preserved 

and had previously been rejected. State v. Kiles, 213 P.3d 174, 192 (Ariz. 2009). 

That notation does not constitute an adjudication on the merits, so the limitations 

on relief laid out by 28 U.S.C. § 2254(d) do not apply to this Court’s review of this 

claim. Even if noting this issue in the Appendix does qualify as a decision on the 

merits, the state court’s denial of this claim was (1) contrary to, or involved an 

unreasonable application of, clearly established federal law, and (2) based on an 

unreasonable determination of the facts. 28 U.S.C. § 2254(d). Section 2254(d) thus 

places no bar on relief.194 

The Eighth Amendment precludes the imposition of punishments that are 

“cruel and unusual” as assessed according to the “evolving standards of decency 

that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 100–01 

(1958). In 1976, the Supreme Court held the “the death penalty is not a form of 

punishment that may never be imposed,” on the assumption that the penalty could 

further “two principal social purposes,” namely retribution and deterrence. Gregg 

v. Georgia, 428 U.S. 153, 183, 187 (1976) (joint opinion of Stewart, Powell, and 

 

194 To conserve space and avoid unnecessary repetition, Kiles will incorporate this 

discussion of the applicability of § 2254(d) into subsequent claims as appropriate. 

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Stevens, JJ.). Since that time, however, scholarship and empirical work has 

emerged eroding these two justifications for capital punishment. See, e.g., Carol S. 

Steiker, No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, 

and the Death Penalty, 58 Stan. L. Rev. 751, 766–76, 786–89 (2005); John J. 

Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death 

Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005). Because the death penalty serves 

neither retribution nor deterrence, and given the evolving standards of decency, the 

death penalty is unconstitutional. 

In addition, the death penalty is cruel for two reasons: it is both unreliable 

and arbitrarily imposed. First, in spite of the need for heightened reliability in a 

proceeding when a sentence of death is at stake, see Woodson v. North Carolina, 

428 U.S. 280, 305 (1976), capital punishment is unreliable because of the 

significant risk that an innocent person will be sentenced to death or even executed. 

See Glossip v. Gross, 135 S. Ct. 2726, 2757 (2015) (Breyer, J., dissenting). Between 

1989 and 2012, there were 115 exonerations from capital convictions; there were 

six more based on actual innocence in 2014 alone. Id. Research suggests that 4.1% 

of the people on death row are actually innocent. See id. at 2758 (citing Samuel R. 

Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced 

to Death, 111 Proc. of the Nat’l Acad. of Sci. 7230 (2014)). Moreover, there is 

compelling evidence that innocent individuals have in fact been executed. See, e.g., 

David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, The New Yorker 

(Sept. 7, 2009), http://www.newyorker.com/magazine/2009/09/07/trial-by-fire. 

Capital punishment is also unreliable because it is frequently imposed on 

people whose impairments make them insufficiently culpable for such a sentence. 

The Supreme Court has held that the death penalty cannot be imposed on those 

without extreme culpability. See Atkins v. Virginia, 536 U.S. 304, 319 (2002). 

Those who are impaired as the result of mental illness, intellectual limitation, child 

abuse, substance addiction, or other deprivation have lessened moral culpability.

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See, e.g., Steiker, supra, at 766–67; see also, e.g., California v. Brown, 479 U.S. 

538, 545, (1987) (O’Connor, J., concurring) (“evidence about the defendant’s 

background and character is relevant because of the belief, long held by this society, 

that defendants who commit criminal acts that are attributable to a disadvantaged 

background, or to emotional and mental problems, may be less culpable than 

defendants who have no such excuse”). Even so, people whose impairments make 

them insufficiently culpable for capital punishment are routinely sentenced to death 

and executed, rendering the death penalty unreliable. See, e.g., Steiker, supra, at 

766–68. 

Second, the death penalty is cruel because it is wholly arbitrary. The 

imposition of the death penalty should turn on the crime and the offender’s 

culpability; capital punishment is to be reserved for “those offenders . . . whose 

extreme culpability makes them ‘the most deserving of execution.’” Roper v.

Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins, 536 U.S. at 319). Instead, 

research demonstrates that a number of irrelevant factors, including the race and 

gender of the victim or defendant and the geographic location of the crime, have an 

impermissible bearing on the probability of a death sentence. See, e.g., Steven F. 

Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, 

McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1244–56 

(2013) (citing studies finding gender, racial, and geographic disparities in the 

imposition of death sentences). 

That the death penalty is both unreliable and turns on constitutionally 

irrelevant factors renders it cruel. Cf. Furman v. Georgia, 408 U.S. 238, 309–10 

(1972) (Stewart, J., concurring) (deeming “cruel and unusual” the “wanton[] and so 

freakish[]” imposition of death sentences). 

The death penalty has also become unusual. The number of death sentences, 

the number of states that use the death penalty, and the number of executions 

nationally have declined significantly over the last 15 years. See Glossip, 135 S. Ct. 

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at 2772–75. Perhaps most striking is the “consistency of the direction of change.” 

Atkins, 536 U.S. at 315. As a result, the vast majority of death sentences originate 

in just a handful of counties. See Glossip, 135 S. Ct. at 2774. Now, especially, 

geography “plays an important role in determining who is sentenced to death,” and 

“[b]etween 2004 and 2009, for example, just 29 counties (fewer than 1% of counties 

in the country) accounted for approximately half of all death sentences imposed 

nationwide.” See id. at 2761. 

The death penalty is cruel and unusual and incompatible with the evolving 

standards of decency; it is therefore unconstitutional. Accordingly, Kiles’s death 

sentence is unconstitutional, and he is entitled to relief. 

Claim Eighteen 

Arizona’s death-penalty statute unconstitutionally serves no 

deterrent purpose, exceeds any legitimate retributive aim, is 

without penological justification, and results in the gratuitous 

infliction of suffering. 

Because Arizona’s death-penalty statute serves no deterrent purpose, exceeds 

any legitimate retributive aim, is without penological justification, and results in the 

gratuitous infliction of suffering, the statute violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 97.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

The Supreme Court recognized two potential “principal social purposes: 

retribution and deterrence of capital crimes by prospective offenders.” Gregg, 428 

U.S. at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.). However, the Court 

also declared that a “sanction imposed cannot be . . . totally without penological 

justification.” Id. Unless the death penalty “measurably contributes to one or both 

of the[] goals [of retribution and deterrence], ‘it is nothing more than the 

purposeless and needless imposition of pain and suffering,’ and hence an 

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unconstitutional punishment.” Enmund v. Florida, 458 U.S. 782, 798 (1982) 

(quoting Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion)). Kiles’s 

death sentence serves neither of these purposes, particularly now, more than 28 

years after he was first sentenced to death. See Foster v. Florida, 537 U.S. 990 

(2002) (mem.) (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 

514 U.S. 1045 (1995) (mem.) (Stevens, J., respecting denial of certiorari); see also 

supra, Claim 17; infra, Claim 34. 

First, the death penalty serves no deterrent value. The theory of deterrence 

assumes that humans will not commit a crime if the consequence of committing 

that crime becomes too high. Frank G. Carrington, Deterrence, Death, and the 

Victims of Crime: A Common Sense Approach, 35 Vand. L. Rev. 587, 588 (1982).

This deterrence theory assumes all individuals act rationally and will undertake a 

cost/benefit analysis before acting. See Rudolph J. Gerber, Economic and Historical 

Implications for Capital Punishment Deterrence, 18 Notre Dame J.L. Ethics & Pub. 

Pol’y 437, 440 (2004). This assumption has proven faulty. Murders are often 

committed by perpetrators who lack the capacity to act rationally, perhaps because 

they are under the influence of alcohol or drugs, in a sudden fit of rage, or mentally 

impaired. See Jeffrey Fagan, Death and Deterrence Redux: Science, Law and 

Causal Reasoning on Capital Punishment, 4 Ohio St. J. Crim. L. 255, 276–77 

(2006). Relatedly, even for potential perpetrators who might have the capacity to 

be deterred, the arbitrariness of the imposition of the death penalty, the length of 

time that elapses between the crime and any execution, and the real possibility that 

no execution will ever occur wholly undercut any possible deterrent effect. See, 

e.g., Glossip, 135 S. Ct. at 2767–68 (Breyer, J., dissenting); Coleman v. Balkcom, 

451 U.S. 949 (1981) (mem.) (Stevens, J., respecting denial of certiorari) 

(recognizing that an execution adds no deterrent value beyond that of the lengthy 

incarceration that precedes it); see also Claim 19, infra. 

Recent studies largely confirm that the death penalty has no measurable 

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deterrent effect. See Thomas E. Robins, Retribution, the Evolving Standard of 

Decency, and Methods of Execution: The Inevitable Collision in Eighth Amendment 

Jurisprudence, 119 Penn. St. L. Rev. 885, 897 (2015) (“[a] recent study conducted 

by the National Academy of Sciences found no evidence that capital punishment 

affected homicide rates”); Michael L. Radelet & Traci L. Lacock, Do Executions 

Lower Homicide Rates?: The Views of Leading Criminologists, 99 J. Crim. L. & 

Criminology 489, 489–90 (2009) (“The findings demonstrate an overwhelming 

consensus among these criminologists that the empirical research conducted on the 

deterrence question strongly supports the conclusion that the death penalty does not 

add deterrent effects to those already achieved by long imprisonment.”).

Second, the death penalty does not measurably advance any legitimate 

retributive goal. That it is regularly imposed on individuals with mild or borderline 

intellectual disability, organic brain damage, severe mental illness, and other forms 

of mental impairments—individuals such as Kiles—demonstrate as much, given 

the lessened culpability of such individuals. See Atkins, 536 U.S. at 319 

(recognizing that mentally impaired offenders are less culpable and therefore less 

deserving of retribution); see also, e.g., Ex parte Moore, 548 S.W.3d 552 (Tex. 

Crim. App. 2018) (deeming petitioner not intellectually disabled, and so not exempt 

from death penalty, despite—as acknowledged in the dissent—broad consensus 

otherwise); Frank R. Baumgartner & Betsy Neill, Does the death penalty target 

people who are mentally ill? We checked, Wash. Post, Apr. 3 2017, https:// 

www.washingtonpost.com/news/monkey-cage/wp/2017/04/03/does-the-death-pen 

alty-target-people-who-are-mentally-ill-we-checked/?noredirect=on&utm_term=. 

c64ca4c30c28 (describing a study which found that “43 percent of inmates executed 

between 2000 and 2015 had received a mental illness diagnosis at some point in 

their lives”); see also Bob Taft and Joseph E. Kernan, End the death penalty for 

mentally ill criminals, Wash. Post, Mar. 24 2017, https://www.washingtonpost. 

com/opinions/end-the-death-penalty-for-mentally-ill-criminals/2017/03/24/f0796 

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2350b6d (describing that recently executed prisoners include a man diagnosed with 

bipolar disorder and placed on lithium at age four and a decorated Vietnam War 

veteran who qualified for 100 percent disability because of his PTSD and bipolar 

disorder). 

And, as with deterrence, the marginal retributive value of execution over a 

sentence of life imprisonment is negligible at best. See Glossip, 135 S. Ct. at 2769. 

Finally, any interest in retribution is eroded by the time that passes between the 

crime and the ultimate punishment. See Knight v. Florida, 528 U.S. 990 (1999) 

(mem.) (Breyer, J., dissenting from denial of certiorari) (“[The] longer the delay, 

the weaker the justification for imposing the death penalty in terms of punishment’s 

basic retributive or deterrent purposes.”). 

The “pointless and needless extinction of life with only marginal 

contributions to any discernible social or public purposes . . . [is] patently excessive 

and . . . violative of the Eighth Amendment.” Furman, 408 U.S. at 312 (White, J., 

concurring). As the death penalty, including in Arizona, serves no cognizable 

penological end, it amounts to the infliction of gratuitous suffering and violates the 

Eighth and Fourteenth Amendments. Accordingly, Kiles’s sentence is 

unconstitutional, and he is entitled to relief. 

Claim Nineteen 

Arizona’s capital-sentencing scheme unconstitutionally does not

genuinely narrow the murder cases eligible for the death penalty 

and fails to channel the discretion of the sentencing jury. 

Because Arizona’s capital-sentencing scheme does not genuinely narrow the 

murder cases eligible for the death penalty and fails to channel the discretion of the 

sentencing jury, it is arbitrary and irrational and violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 95.) For the reasons 

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set forth in Claim 17, supra, 28 U.S.C. § 2254(d) does not limit relief. 

Arizona’s death-penalty statute makes nearly everyone involved in a murder 

eligible for the death penalty. See A.R.S. § 13-1105. Further, Arizona’s aggravating 

circumstances sweep broadly and fail to guide the sentencing jury in selecting who 

should receive the death penalty. See A.R.S. § 13-703(F) (1988).195 As a result, the 

capital-sentencing statute fails to narrow the class of death-eligible persons, to 

reasonably justify the imposition of a harsher penalty, and to channel the 

sentencer’s discretion in imposing the death penalty. Thus, in Arizona, the 

distinction between capital and non-capital cases is not meaningful but is instead 

unconstitutionally arbitrary and irrational. 

In Furman, the Supreme Court declared that a capital-sentencing scheme is 

unconstitutional when it provides “no meaningful basis for distinguishing the few 

cases in which [death] is imposed from the many cases in which it is not.” 408 U.S. 

at 313 (White, J., concurring). “Furman mandates that where discretion is afforded 

a sentencing body on a matter so grave as the determination of whether a human 

life should be taken or spared, that discretion must be suitably directed and limited 

so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 

U.S. at 189 (joint opinion of Stewart, Powell, and Stevens, JJ.). 

For the death penalty to be constitutional, the legislature must establish a 

narrowing process. See id. at 207 (the selection of who can be prosecuted and 

ultimately sentenced to death “[must] always [be] circumscribed by . . . legislative 

guidelines”); Lowenfield v. Phelps, 484 U.S. 231, 246 (1988) (the “legislature” 

must provide a means of “narrow[ing] the class of death-eligible murderers”). “Part 

of a State’s responsibility in this regard is to define the crimes for which death may 

be the sentence in a way that obviates ‘standardless [sentencing] discretion.’” 

Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (alteration in original) (quoting 

 

195 The current version, at A.R.S. § 13-751(F), includes additional aggravating 

circumstances. 

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Gregg, 428 U.S. at 196 n.47 (joint opinion of Stewart, Powell, and Stevens, JJ.)). 

Ultimately, “[t]o pass constitutional muster, a capital sentencing scheme must 

‘genuinely narrow the class of persons eligible for the death penalty and must 

reasonably justify the imposition of a more severe sentence on the defendant 

compared to others found guilty of murder.’” Lowenfield, 484 U.S. at 244 (quoting 

Zant v. Stephens, 462 U.S. 862, 877 (1983)); see also Brown v. Sanders, 546 U.S. 

212, 216 (2006) (explaining the Supreme Court has “required States to limit the 

class of murderers to which the death penalty may be applied.”)

Arizona’s statute violates these mandates. While narrowing can occur with 

either the defining of death-eligible murder or the requirement of aggravating 

circumstances that apply to only a fraction of murders, Arizona’s statute features 

neither approach. First, the narrowing process does not occur with Arizona’s 

definition of death-eligible murders. Under Arizona law, first-degree murder is 

comprised of a broad range of conduct, including intentional killings, knowing 

killings, premeditated killings, and killings committed in the course of numerous 

other crimes. See A.R.S. § 13-1105(A). This “pool” of crimes initially eligible to 

be charged as capital crimes is so broadly defined that it encompasses the vast 

majority of murders actually committed. This is seen both through a reading of the 

statute, which fails to meaningfully distinguish between first-degree murder and 

second-degree murder, and through a review of actual cases, which demonstrates 

that almost all murders in Arizona qualify as first-degree murder. See Hidalgo v. 

Arizona, 138 S. Ct. 1054, 1055 (2018) (mem.) (Breyer, J., respecting denial of 

certiorari) (“Perhaps not surprisingly, Arizona did not argue below and does not 

suggest now that the State’s first-degree murder statute196 alone can meet the Eighth 

 

196 The homicide statute and the section of the capital-punishment statute on 

aggravating circumstances have been modified since 1988 but are largely 

unchanged. While not every aggravating circumstance relied upon in Hidalgo

existed in the statute under which Kiles was sentenced, the vast majority did, 

including the particularly broad-reaching circumstance that applies when “[t]he 

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Amendment’s narrowing requirement.”). 

The narrowing function, then, is ostensibly performed by the aggravating 

circumstances; a jury must find at least one to make a first-degree-murder defendant 

death-eligible. See id. (“Because Arizona law broadly defines capital murder, the 

State has sought to comply with the narrowing requirement through the second 

method—namely, by setting forth statutory ‘aggravating circumstances’ designed 

to permit the ‘jury . . . at the penalty phase’ to make ‘findings’ that will narrow the 

legislature’s broad definition of the capital offense.” (quoting Lowenfield, 484 U.S. 

at 246)). However, Arizona’s aggravating circumstances are so expansive that they 

do not meaningfully separate out the group of defendants whose crimes are so 

egregious they should be eligible for the death penalty. See Hidalgo, 138 S. Ct. at 

1056 (mentioning unrebutted evidence that “‘one or more aggravating 

circumstances were present in’” 98 percent of first-degree murder defendants 

prosecuted between 2002 and 2012 in Maricopa County, Arizona (quoting State v. 

Hidalgo, 390 P.3d 783, 789 (Ariz. 2017)). Moreover, individual aggravating 

circumstances cover a wide swath of conduct. See, e.g., Claim 30, infra. 

Accordingly, Arizona’s aggravating circumstances do not serve to narrow the pool 

of death-eligible murders. 

Where there is no meaningful basis to distinguish between those first-degree 

murder defendants who do receive the death penalty and those who do not, and a 

sentencer’s discretion to impose the death penalty is not adequately channeled, the 

imposition of the death penalty is arbitrary and irrational. Furman, 408 U.S. at 313. 

Kiles’s sentence of death is arbitrary and irrational since he is not among the worst 

criminals, for whom because of their “extreme culpability” the death penalty is 

reserved. Simmons, 543 U.S. at 568. There is no rational, constitutionally 

permissible basis for distinguishing Kiles’s case, or the few cases in which the death 

 

defendant committed the offense in an especially heinous, cruel or depraved 

manner.” See A.R.S. § 13-703(F)(6) (1988). 

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penalty has been imposed in Arizona and in the United States, from the majority of 

first-degree murder cases in which it has not been imposed. The arbitrary 

application of the death penalty in Kiles’s case amounts to cruel and unusual 

punishment in violation of the Eighth Amendment and violates his rights to a 

reliable sentence and due process under the Eighth and Fourteenth Amendments to 

the U.S. Constitution. See Glossip, 135 S. Ct. at 2755–56 (Breyer, J., dissenting); 

Jeffers v. Lewis, 38 F.3d 411, 425 (9th Cir. 1994) (en banc) (Noonan, J., dissenting) 

(“[T]he administration of the death penalty in Arizona is so arbitrary as to constitute 

cruel and unusual punishment . . . .”). Accordingly, Kiles’s death sentence is 

unconstitutional, and Kiles is entitled to relief. 

Claim Twenty 

Arizona’s capital-sentencing scheme unconstitutionally affords the 

prosecutor unlimited discretion to seek the death penalty. 

Because Arizona’s capital-sentencing scheme affords the prosecutor 

unlimited discretion to seek the death penalty, it violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

In Arizona, each prosecutor has the sole authority and complete discretion to 

determine whether to seek the death penalty as a sentencing option, following his 

or her unreviewable determination that one or more aggravating circumstances 

exists. The prosecutor’s discretion is limited only by his or her individual whims as 

to which cases are appropriate for the death penalty. See State v. Harding, 670 P.2d 

383, 397 (Ariz. 1983). Further, each prosecutor has significant discretion to choose 

whether to accept a plea deal in exchange for a sentence of life in each case. Here, 

the prosecutor stated on the record that with regard to plea deals, “it’s my case; I 

make the calls on it.” (Tr. Aug. 6, 1999 at 38–39.) Thus, whether a defendant is 

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offered a plea deal or sentenced to death may arbitrarily turn on such a factor as the 

prosecutor’s personal relationship with defense counsel, which may have occurred 

in this case,197 instead of on a constitutionally required determination based on “the 

character and record of the individual offender.” Eddings v. Oklahoma, 455 U.S. 

104, 112 (1982). 

Arizona’s scheme therefore allows arbitrary and capricious charging 

decisions and creates a substantial risk of variation between similar cases. Such 

“arbitrary and wanton” discretion in seeking a death sentence, see Woodson v. 

North Carolina, 428 U.S. 280, 303 (1976), leads to the “wanton[] and so freakish[]” 

imposition of the death penalty, see Furman, 408 U.S. at 310 (Stewart, J., 

concurring). 

 That Arizona prosecutors have unbridled discretion, without objective 

standards, to seek the death penalty—and to decide not to continue seeking the 

death penalty—violates the Eighth and Fourteenth Amendments. See Godfrey, 446 

U.S. at 428; Gregg, 428 U.S. at 195 n.47 (joint opinion of Stewart, Powell, and 

Stevens, JJ.); Furman, 408 U.S. at 313 (White, J., concurring). Accordingly, Kiles’s

sentence is unconstitutional, and he is entitled to relief. 

Claim Twenty-One 

Arizona’s capital-sentencing scheme is unconstitutional because it 

does not require the State to prove, or the jury to find beyond a 

reasonable doubt, that the aggravating factors outweighed the 

mitigating circumstances. 

Because Arizona’s capital-sentencing scheme does not require the State to 

prove beyond a reasonable doubt that the aggravation outweighs the mitigation and 

that the death penalty is the appropriate sentence, the scheme violates the Fifth, 

Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles 

 

197 Other impermissible considerations include race, the prosecutor’s career 

ambitions, and the wishes of the victims—the last of which may also have played a 

role in this case. 

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incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

A. The trial court’s penalty-phase instructional error regarding the 

burden and standard of proof, derived from Arizona’s 

unconstitutional statute, violated Kiles’s rights under clearly

established precedent. 

Before the jury may impose a death sentence, Arizona’s death-penalty statute 

requires the jury to find that aggravating circumstances outweigh mitigating 

circumstances. However, Arizona’s capital-sentencing scheme does not specify 

either which party bears the burden of proof or what the appropriate standard of 

proof is with regard to the weighing of aggravating and mitigating circumstances. 

See A.R.S. § 13-751(E). The trial court in Kiles’s case accordingly instructed the 

jurors only that they “decide whether there is mitigation that is sufficiently 

substantial to call for leniency.” (Tr. May 22, 2006 at 24.) At no point did the trial 

court instruct the jury about a burden of persuasion with regard to the weighing of 

aggravating and mitigating circumstances. (See Tr. May 22, 2006 at 14–26.) Like 

Arizona’s statute, the jury instructions therefore relieved the prosecutor of his 

burden of proving beyond a reasonable doubt that the mitigation was not 

sufficiently substantial to call for leniency. By extension, the instructions also 

relieved the jury of having to determine beyond a reasonable doubt that the death 

penalty was the appropriate punishment. This violated Kiles’s clearly established 

rights. 

The Supreme Court has repeatedly held that “any fact (other than prior 

conviction) that increases the maximum penalty for a crime must be charged in an 

indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones v. 

United States, 526 U.S. 227, 243 n.6 (1999); see also Apprendi v. New Jersey, 530 

U.S. 466, 476 (2000) (applying this principle to states through the Fourteenth 

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Amendment). The Court reaffirmed this principle in the capital context in Ring v. 

Arizona: “If a State makes an increase in a defendant’s authorized punishment 

contingent on the finding of a fact, that fact—no matter how the State labels it—

must be found by a jury beyond a reasonable doubt.” 536 U.S. 584, 602 (2002); see 

also id. at 610 (Scalia, J., concurring) (“[T]he fundamental meaning of the jury-trial 

guarantee of the Sixth Amendment is that all facts essential to imposition of the 

level of punishment that the defendant receives—whether the statute calls them 

elements of the offense, sentencing factors, or Mary Jane—must be found by the 

jury beyond a reasonable doubt.”). Because aggravating circumstances must be 

found to outweigh mitigating circumstances before a death sentence can be imposed 

in Arizona, under Ring and its antecedents, that weighing is a fact that must be 

found by a jury beyond a reasonable doubt. See Murdaugh v. Ryan, 724 F.3d 1104, 

1115 (9th Cir. 2013) (“In [Ring], the Supreme Court described several 

determinations that had to occur under Arizona law before a defendant became 

death-eligible, including the judge’s determination that ‘there are no mitigating 

circumstances sufficiently substantial to call for leniency.’”). 

The accuracy of Kiles’s position on appeal was made explicit when the 

Supreme Court decided Hurst v. Florida, 136 S. Ct. 616 (2016), in which the Court 

held that the failure to require a jury to determine the relative weight of aggravating 

and mitigating circumstances beyond a reasonable doubt violates the Sixth 

Amendment right to a jury trial as well as the Fourteenth Amendment’s Due Process 

Clause. The Court reiterated the Sixth Amendment’s basic requirement that “any 

fact that ‘expose[s] the defendant to a greater punishment than that authorized by 

the jury’s guilty verdict’ is an ‘element’ that must be submitted to the jury.” Id. at 

621 (quoting Apprendi, 530 U.S. at 494). The Court also emphasized that under 

Ring, this principle applies with equal force to death-penalty statutes: “The Sixth 

Amendment requires a jury, not a judge, to find each fact necessary to impose a 

sentence of death.” Id. at 619. The Court further recognized that under Alleyne v. 

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United States, 133 S. Ct. 2151, 2156 (2013), “each element of a crime [must] be 

proved to a jury beyond a reasonable doubt.” Hurst, 136 S. Ct. at 621; 

see also Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (stating that charges 

against the accused, and the corresponding maximum exposure he faces, must be 

determined “beyond a reasonable doubt by the unanimous vote of 12 of his fellow 

citizens”). 

In Hurst, the State of Florida argued that the weighing process fell outside 

the ambit of Ring and Apprendi, as the defendant was death eligible after the jury 

found at least one aggravating circumstance. Hurst, 136 S. Ct. at 622. The Court 

rejected this contention, and Hurst therefore stated what earlier Sixth Amendment 

precedent had already established: It is not constitutionally sufficient for a jury to 

find the existence of at least one aggravating circumstance beyond a reasonable 

doubt, because the determination regarding the relative weight of aggravating and 

mitigating circumstances is also a factual finding necessary to a defendant’s 

eligibility for a sentence of death. Id.; see also Rauf v. State, 145 A.3d 430 (Del. 

2016) (per curiam) (striking down Delaware’s capital sentencing scheme on the 

basis of Hurst and determining that the Sixth Amendment requires a jury to find, 

beyond a reasonable doubt, each aggravating circumstance and that the aggravation 

outweighs mitigation); Hurst v. State, 202 So.3d 40, 57 (Fla. 2016) (finding that 

Hurst “mandates that all the findings necessary for the imposition of a death 

sentence are ‘elements’ that must be found by a jury” and holding that “before the 

trial judge may consider imposing a sentence of death, the jury in a capital case 

must . . . unanimously find that the aggravating factors outweigh the mitigating 

circumstances”).

Hurst built upon Ring and Apprendi but did not create new law. 

Section 2254(d)(1) is no bar to relief, because the state court’s failure to recognize 

the violation of Kiles’s rights was an unreasonable application of clearly established 

federal law, and Kiles is entitled to relief. 

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B. If Hurst instead announced a new rule of constitutional law, it is 

retroactive to cases on collateral review. 

In the alternative, if Hurst did not simply apply existing precedent and instead 

created a new rule of constitutional law, that ruling applies retroactively on 

collateral review. But see Ybarra v. Filson, 869 F.3d 1016, 1033 (9th Cir. 2017). 

First, Hurst is retroactive because it is substantive. See Montgomery v. Louisiana, 

136 S. Ct. 718, 728 (2016) (explaining that under Teague v. Lane, 489 U.S. 288 

(1989), “courts must give retroactive effect to new substantive rules of 

constitutional law”). The Supreme Court consistently held that decisions 

establishing a requirement of proof beyond a reasonable doubt apply retroactively. 

See Hankerson v. North Carolina, 432 U.S. 233 (1977); Ivan V. v. City of New York, 

407 U.S. 203, 205 (1972) (per curiam). Under Teague’s framework, rules about the 

standard of proof are retroactive because they lessen the “risk that a 

defendant . . . faces a punishment that the law cannot impose upon him.” Schriro v. 

Summerlin, 542 U.S. 348, 351–52 & n.4 (2004); cf. In re Winship, 397 U.S. 358, 

363 (1970). Hurst, which implicates the standard of proof by which the weighing 

finding must be made, is similarly substantive in nature and therefore retroactive. 

Further, Hurst is substantive because it prohibits the death penalty—a 

category of punishment—for those made eligible for the penalty other than by a 

jury finding beyond a reasonable doubt that aggravation outweighs mitigation—a 

class of defendants. See Montgomery, 136 S. Ct. at 728. Hurst also imposes a new 

burden on the State whenever it seeks a death sentence and places that punishment 

outside the power of the State unless that burden has been met. See Summerlin, 542 

U.S. at 352 (describing “substantive” rules as those that put particular punishments 

beyond the power of the State to impose). Finally, Hurst narrowed the scope of 

Arizona’s capital sentencing statute, which does not impose any standard of proof 

on a capital jury’s weighing determination, by making it more difficult for juries to 

return death verdicts. See id. at 351 (describing “substantive” rules as those that 

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“narrow the scope of a criminal statute by interpreting its terms”). 

Even if procedural and not substantive, Hurst’s beyond-a-reasonable-doubt 

holding would constitute a “watershed” procedural rule under Teague. See Powell 

v. State, 153 A.3d 69, 74–75 (Del. 2016) (finding retroactive its prior decision in 

Rauf, which invalidated Delaware’s death penalty statute under Hurst, because it 

fell “squarely within the second exception set forth in Teague requiring retroactive 

application of ‘new rules’ of criminal procedure”). This is because Hurst

“implicate[s] the fundamental fairness and accuracy,” of sentencing. Welch, 136 S. 

Ct. at 1264. Hurst does so by mandating the use of the beyond-a-reasonable-doubt 

standard, which “is a prime instrument for reducing the risk of convictions resting 

on factual error.” Ivan, 407 U.S. at 204 (quoting Winship, 397 U.S. at 363–64). 

Hurst, if deemed procedural, would therefore constitute a watershed new rule and 

would be retroactive. Accordingly, if the Court finds that Hurst announced a new 

rule of constitutional law, it applies retroactively to Kiles’s case.

C. Conclusion 

The statutorily driven failure to instruct Kiles’s jury on the proper burden of 

proof is structural error not subject to harmlessness review. See Sullivan v. 

Louisiana, 508 U.S. 275, 281 (1993) (refusing to apply harmless-error analysis 

where trial court erred in describing burden of proof in a criminal case, reasoning 

that “a misdescription of the burden of proof . . . vitiates all the jury’s findings”). 

Even if the error was not structural, Kiles was prejudiced. See Valerio v. Crawford, 

306 F.3d 742, 763 (9th Cir. 2002) (noting that the inquiry under Brecht v. 

Abrahamson, 507 U.S. 619, 637–38 (1993), is whether “a single member of the 

jury . . . could have” found in favor of the petitioner). The jury instructions in this 

case violated Kiles’s rights, and Arizona’s statute is unconstitutional. Under any 

construction of the import of Hurst, Kiles is entitled to relief. 

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Claim Twenty-Two 

Arizona’s capital-sentencing scheme unconstitutionally requires a 

defendant to affirmatively prove that the jury should spare his life. 

Arizona’s death-penalty statute creates a presumption that death is the 

appropriate sentence and forces the defendant to affirmatively prove that the jury 

should spare his life, in violation of the Fifth, Eighth, and Fourteenth Amendments 

to the U.S. Constitution. Kiles incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 95.) For the reasons 

stated in Claim 17, supra, 28 U.S.C. § 2254(d) does not limit relief. 

 Arizona law required Kiles to prove mitigating circumstances by a 

preponderance of the evidence before the sentencing jury could rely on those 

circumstances to spare his life. See A.R.S. § 13-751(C); (Tr. May 22, 2006 at 18); 

see also State v. Ramirez, 871 P.2d 237, 252–53 (Ariz. 1994) (requiring the 

defendant to prove mitigating evidence by a preponderance of the evidence before 

the sentencer may “accept[]” the evidence as mitigating). Further, Arizona law 

required the jury to weigh the aggravation against the mitigation and determine 

whether the mitigation was “sufficiently substantial” before deciding whether to 

impose a death sentence. See Richmond v. Lewis, 506 U.S. 40, 47 (1992). In effect, 

then, Arizona law required the jury to presume that death was the appropriate 

sentence for Kiles and for him to prove that it was not.198

However, the Eighth Amendment demands a heightened degree of 

“reliability in the determination that death is the appropriate punishment in a 

specific case.” Woodson, 428 U.S. at 305 (joint opinion of Stewart, Powell, and 

Stevens, JJ.). That reliability is undermined when a jury is instructed to presume 

 

198 Arizona’s capital statute also requires a sentence of death when one aggravating 

circumstance is proven and no sufficiently substantial mitigation is proven, see 

A.R.S. § 13-751(E), further entrenching the presumption in favor of death. 

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that death is appropriate. See Walton v. Arizona, 497 U.S. 639, 687–88 (1990) 

(Blackmun, J., dissenting) (recognizing that, with the statutory presumption of 

death, imposing a death sentence may “run[] directly counter to the Eighth 

Amendment requirement” of reliability set out in Woodson), overruled on other 

grounds by Ring, 536 U.S. at 584. 

In Kansas v. Marsh, 548 U.S. 163 (2006), the Supreme Court indirectly 

questioned the constitutionality of Arizona’s death-penalty statute when it upheld 

the Kansas statute, which permitted a death sentence when the aggravating and 

mitigating circumstances were in equipoise. The Court noted that Arizona’s statute 

is comparable to that of Kansas, except that Arizona, “once the State has met its 

burden, tasks the defendant with the burden of proving sufficient mitigating 

circumstances to overcome the aggravating circumstances and that a sentence less 

than death is therefore warranted.” Id. at 173. Unlike Arizona’s statute, “the Kansas 

statute requires the State to bear the burden of proving to the jury, beyond a 

reasonable doubt, that aggravators are not outweighed by mitigators and that a 

sentence of death is therefore appropriate; it places no additional evidentiary burden 

on the capital defendant.” Id. The Court noted that “[t]his distinction operates in 

favor of Kansas capital defendants,” and in light of this distinction, the Court upheld 

Kansas’s statute as constitutional. Id.

Without such safeguards, Arizona’s capital-sentencing scheme cannot ensure 

the requisite reliability, and accordingly, it violated Kiles’s rights under the Fifth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. See Woodson, 428 

U.S. at 305; Patterson v. New York, 432 U.S. 197, 210–11 (1977). But see Walton, 

497 U.S. at 651–52. Kiles’s sentence is unconstitutional, and he is entitled to habeas 

relief. 

Claim Twenty-Three 

Arizona’s capital-sentencing scheme unconstitutionally fails to

require the cumulative consideration of mitigation. 

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Arizona’s capital-sentencing scheme violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution because it does not require the cumulative 

consideration of mitigation. Kiles incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) does not bar relief. 

The Eighth Amendment requires that a sentencer “be able to consider and 

give effect to” all mitigating evidence when making its sentencing determination. 

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (emphasis added), abrogated on other 

grounds by Atkins, 536 U.S. at 304. “[E]ven if [specific mitigating facts] are not in 

themselves cause for a sentence less than death, they are still relevant to mitigation 

and must be weighed in conjunction with other factors to determine if all of the 

circumstances together warrant a lesser sentence.” Smith v. McCormick, 914 F.2d 

1153, 1168 (9th Cir. 1990). 

At trial, the court instructed the jury that its sentencing decision came down 

to “whether there is mitigation that is sufficiently substantial to call for leniency.” 

(Tr. May 22, 2006 at 24.) However, the court did not make clear that each juror 

could consider the cumulative effect of the mitigation, as opposed to considering 

only whether each piece of mitigation individually was sufficiently substantial to 

warrant leniency. (See Tr. May 22, 2006 at 14–26.) Indeed, some of the court’s 

instructions suggested the opposite: “A mitigating factor that motivates one juror to 

vote for a sentence of life in prison may be evaluated by another juror as . . . not 

significant to the assessment of the appropriate penalty.” (Tr. May 22, 2006 at 22–

23.) Absent an explicit instruction to consider the cumulative effect of the 

mitigation, and with individual instructions implying that the jury should not do so, 

Kiles’s jury was unable to adequately give effect to the sum of the mitigation 

presented in his case. 

Due process requires that a jury be fully and correctly instructed on 

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sentencing law to prevent an unconstitutional and arbitrary deprivation of the 

defendant’s liberty. See Hicks v. Oklahoma, 447 U.S. 343, 346–47 (1980); see also 

Taylor v. Kentucky, 436 U.S. 478, 488–89 (1978) (holding that the “arguments of 

counsel cannot substitute for instructions by the court”). The jury instructions in 

this case on the consideration of mitigation did not—and Arizona’s death-penalty 

statute does not—comply with the Eighth and Fourteenth Amendments to the U.S. 

Constitution. As a result, Kiles’s death sentence is unconstitutional, and he is 

entitled to relief.

Claim Twenty-Four 

Arizona’s death-penalty statute is unconstitutional because it fails 

to require the jury to make specific findings as to each mitigating 

circumstance. 

Arizona’s death-penalty statute violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution because it neglects to require the jurors to 

make specific findings as to each proffered mitigating factor. Kiles incorporates by 

specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) does not bar relief. 

The Eighth and Fourteenth Amendments require states to provide a 

mechanism for meaningful direct review of death sentences. Gregg, 428 U.S. at 

197–98 (joint opinion of Stewart, Powell, and Stevens, JJ.); see also State v. 

Brewer, 826 P.2d 783, 790 (Ariz. 1992) (“Appellate review of sentencing is, of 

course, even more necessary in the context of a capital case. The penalty of death 

differs from all other forms of criminal punishment in terms of severity and 

irrevocability, and may not be exacted in the absence of certain constitutional 

safeguards.”). In order to achieve such meaningful review, “it is important that the 

record on appeal disclose to the reviewing court the considerations which motivated 

the death sentence in every case in which it is imposed.” Gardner v. Florida, 430 

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U.S. 349, 361 (1977) (plurality opinion). Arizona law helps to ensure meaningful 

review in non-capital cases, for which the court is required to state for the record 

the mitigating and aggravating factors it considers and applies when imposing any 

sentence other than the presumptive term. A.R.S. § 13-701(C); State v. Harrison, 

985 P.2d 486 (Ariz. 1999). However, Arizona fails to offer such protections to 

capital defendants. 

Under Arizona law, the trier of fact in a capital case is charged with 

determining whether the mitigating circumstances are “sufficiently substantial to 

call for leniency”; whether a mitigating circumstance is proven is determined by 

each juror individually. A.R.S. § 13-751(C), (E). But Arizona’s death-penalty 

statute does not require the jury to identify in its verdict form which mitigating 

circumstances individual jurors deemed proven. See id. The verdict forms in Kiles’s 

case thus reflect only the ultimate sentence the jury deemed appropriate for each 

first-degree murder conviction. (See ROA 919 at 1–3.) 

As a result, when the Arizona Supreme Court conducted its independent 

review of the “aggravation, mitigation, and the propriety of the sentence” in Kiles’s 

case, Kiles, 213 P.3d at 187, the court did so without the benefit of knowing which 

mitigating circumstances jurors had found proven. In other words, the court 

conducted its appellate review without knowing the considerations that motivated 

the death sentence. That appellate review was not the meaningful review 

contemplated by Gregg. See Gardner, 430 U.S. at 361 (plurality opinion). That such 

a review—done without information on what informed the jury’s decision—could 

not have been meaningful is especially true in this case, where the jury was asked 

to consider an enumerated list of mitigating circumstances and where the jury 

determined that death was the appropriate sentence on one count but that life 

imprisonment was appropriate for other counts. (See Tr. May 22, 2006 at 19–21; 

ROA 919 at 1–3.) 

The trial court’s failure to require special verdict forms indicating which 

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mitigating circumstances the jurors had found proven—and the fact that such forms 

are not statutorily required—deprived Kiles of an adequate appellate review and 

violated his rights under the Eighth and Fourteenth Amendments to the U.S. 

Constitution. Accordingly, Kiles is entitled to relief. 

Claim Twenty-Five 

Arizona’s capital-sentencing scheme unconstitutionally limits the 

jury’s full consideration of mitigation by requiring that mitigating 

circumstances be proven by a preponderance of the evidence. 

In requiring that mitigation be proven by a preponderance of the evidence, 

Arizona’s capital-sentencing scheme violates the Eighth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

At trial, in accordance with Arizona statute, the court instructed the jury as 

follows: “The burden of proving the existence of mitigation is on the defendant. 

The defendant must prove the existence of mitigation by a preponderance of the 

evidence.” (Tr. May 22, 2006 at 18); see also A.R.S. § 13-751(C). The court further 

instructed the jury that “[a] party having the burden of proof by a preponderance of 

the evidence must persuade you by the evidence that the claim or a fact is more 

probably true than not true. This means the evidence that favors that party 

outweighs the opposing evidence.” (Tr. May 22, 2006 at 18.) By requiring Kiles to 

prove mitigation by a preponderance of the evidence, the jury instruction 

constrained the jury’s ability to consider all of the mitigation presented. 

In Lockett v. Ohio, the United States Supreme Court concluded that, “in all 

but the rarest kind of capital case,” the sentencer must “not be precluded from 

considering, as a mitigating factor, any aspect of a defendant’s character or record 

and any of the circumstances of the offense . . . [offered] as a basis for a sentence 

less than death.” 438 U.S. 586, 604–05 (1978) (emphasis omitted). Moreover, “it is 

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not enough simply to allow the defendant to present mitigating evidence to the 

sentencer. The sentencer must also be able to consider and give effect to that 

evidence in imposing [the] sentence.” Penry, 492 U.S. at 319, abrogated on other 

grounds by Atkins, 536 U.S. at 304; see also Tennard v. Dretke, 542 U.S. 274, 285 

(2004) (“[T]he ‘Eighth Amendment requires that the jury be able to consider and 

give effect to’ a capital defendant’s mitigating evidence.”) (quoting Boyde v. 

California, 494 U.S. 370, 377–78 (1990)). Imposing a standard that limits the 

mitigating evidence considered by the jury violates the Eighth Amendment’s 

requirement that the sentencer be allowed to consider any aspect of the defendant’s 

character or record that counsels in favor of a sentence other than death. See, e.g.,

Smith v. Texas, 543 U.S. 37 (2004) (per curiam); Tennard, 542 U.S. at 285; Lockett, 

438 U.S. at 604. But see Walton, 497 U.S. at 649–51 (plurality opinion), overruled 

on other grounds by Ring, 536 U.S. at 584.

The jury instruction limiting the mitigation the jury could consider, alone and 

when considered cumulatively with the other instructional errors, violated Kiles’s 

constitutional rights and prejudiced him. Kiles’s death sentence is therefore 

unconstitutional, and he is entitled to relief. 

Claim Twenty-Six 

Arizona’s capital-sentencing scheme unconstitutionally fails to set 

forth objective standards to guide the sentencer in weighing the 

aggravating circumstances against the mitigating circumstances.

Because Arizona’s death-penalty statute offers no objective standards to 

guide the sentencer in weighing the aggravating versus mitigating evidence, the 

statute violates the Eighth and Fourteenth Amendments to the U.S. Constitution. 

Kiles incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 96.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

Under the Eighth and Fourteenth Amendments to the U.S. Constitution, a 

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capital defendant is entitled to an individualized sentencing determination. See 

Stephens, 462 U.S. at 879. That determination cannot be arbitrary, see Furman, 408 

U.S. at 310 (Stewart, J., concurring), or made without adequate consideration of 

factors that might call for a sentence less than death. See, e.g., Atkins, 536 U.S. at 

320–21. Kiles was denied a constitutionally appropriate individualized sentencing 

determination because his sentencing jury had no objective guidance in determining 

whether the mitigating evidence presented was sufficiently substantial to call for 

leniency. (See Tr. May 22, 2006 at 22 (“Sufficiently substantial to call for leniency 

means that the mitigation must be of such quality or value that it is adequate in the 

opinion of an individual juror to persuade that juror to vote for a sentence of life 

imprisonment.”)); see also State ex rel. Thomas v. Granville, 123 P.3d 662, 666 

(Ariz. 2005) (recognizing that, under Arizona’s statute, neither party bears the 

burden on whether the mitigation warrants leniency). In the absence of such 

guidance, there is an intolerably high risk that Kiles’s death sentence was the result 

of unfettered discretion. See, e.g., Furman, 408 U.S. at 239–40 (1972) (per curiam). 

Accordingly, Kiles’s sentence is unconstitutional, and he is entitled to relief. 

Claim Twenty-Seven 

Arizona’s capital-sentencing scheme unconstitutionally denies 

capital defendants the benefit of proportionality review of their 

sentences. 

The capital-sentencing scheme in Arizona under which Kiles was sentenced 

denies a proportionality review in violation of the Fifth, Eighth, and Fourteenth 

Amendments of the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Kiles raised this claim on direct appeal. (DA2 Dkt. 86 at 97.) For the reasons 

set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on relief. 

The Arizona Supreme Court failed to conduct a comparative proportionality 

review of Kiles’s death sentence, rendering the sentence unconstitutional. When the 

United States Supreme Court sanctioned the modern death-penalty scheme, it did 

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so based on the belief that state supreme courts would conduct careful and effective 

proportionality reviews in individual cases to guard against the arbitrary and 

capricious infliction of the death penalty. See Gregg, 428 U.S. at 203–06 (joint 

opinion of Stewart, Powell, and Stevens, JJ.) (highlighting proportionality review 

on appeal as an important protection against caprice in sentencing); Proffitt v. 

Florida, 428 U.S. 242, 258 (1976) (joint opinion of Stewart, Powell, and Stevens, 

JJ.) (same); see also Glossip, 135 S. Ct. at 2763 (Breyer, J., dissenting) (recognizing 

the importance of comparative proportionality review to avoid arbitrary imposition 

of the death penalty). But see Pulley v. Harris, 465 U.S. 37, 50–51 (1984). The 

Arizona Supreme Court, however, has abandoned this procedural safeguard. See

State v. Salazar, 844 P.2d 566, 583–84 (Ariz. 1992). The denial of proportionality 

review allows for the death penalty to be applied arbitrarily in Arizona and violates 

the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles’s 

sentence, affirmed without such a review, is constitutionally unsound, and Kiles is 

entitled to relief. 

Claim Twenty-Eight 

Arizona’s capital-sentencing scheme unconstitutionally 

discriminates against poor, young, African-American male 

defendants. 

Kiles was sentenced to death under a statutory scheme that discriminates 

against poor, young, African-American males in violation of the Fourteenth 

Amendment to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

This claim was not raised in state court. Kiles alleges he can overcome any 

default of this claim by showing that it was caused by the ineffective assistance of 

appellate and state post-conviction counsel and that he was prejudiced by the 

default. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Edwards v. Carpenter, 529 

U.S. 446, 453 (2000); but see Davila v. Davis, 137 S. Ct. 2058 (2017). Kiles will 

demonstrate at an evidentiary hearing that appellate and post-conviction counsel’s 

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performance fell below the standards of minimally competent capital attorneys and 

that their failures prejudiced him. Alternatively, he alleges that any procedural bar 

is neither adequate nor independent and that imposing default would be a 

miscarriage of justice. Because this claim has not been adjudicated on the merits by 

the Arizona state courts, the barrier to relief imposed by 28 U.S.C. § 2254(d) does 

not apply, and the Court may consider the merits of the claim de novo. 

Kiles, an African-American male, who was 27 years old at the time of the 

crime for which he was later convicted and sentenced to death (see ROA 1 at 1; 

ROA 225 Ex. 1), was condemned pursuant to a statutory scheme that is 

discriminatorily applied. The Fourteenth Amendment guarantees that no state shall 

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. 

Const. amend. XIV, § 1. The Equal Protection Clause protects criminal defendants 

from being sentenced based on purposeful discrimination. McCleskey v. Kemp, 481 

U.S. 279, 292 (1987). Still, Arizona’s death row is predominantly populated by 

indigent males. For example, although women commit nearly 12 percent of all 

murders and non-negligent manslaughters, only three of the 117 persons on 

Arizona’s death row are women. See FBI, Crime in the United States 2015, Table 

42: Arrests by Sex, 2015, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-theu.s.-2015/tables/table-42; Arizona Department of Corrections, Death Row 

Demographics (last visited Aug. 13, 2018), http://corrections.az.gov/node/431. 

Indeed, research suggests that “women homicide defendants receive more favorable 

treatment at each stage of the criminal process,” even in capital cases. Shatz & 

Dalton, supra, at 1251–53 (citing studies finding gender disparities in the 

imposition of death sentences). 

Additionally, studies have found that, along with gender, “the racial 

composition of and distribution within a county plays an important role” in 

determining who receives the death penalty while “proper factors—such as 

‘egregiousness’—do not.” Glossip, 135 S. Ct. at 2760–62 (Breyer, J., dissenting). 

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That Kiles was sentenced by a Maricopa County jury on its own likely affected his 

sentence. See, e.g., Levinson, Smith, & Young, Devaluing Death: An Empirical 

Study of Implicit Racial Bias on Jury–Eligible Citizens in Six Death Penalty States, 

89 N.Y.U. L. Rev. 513, 533–536 (2014). As “numerous studies have criticized the 

death penalty as disproportionately affecting defendants of color,” and defendants 

have had death sentences “fortuitously imposed simply because of the county” in 

which the defendant is sentenced, “our historic inability to devise a method to 

implement the death penalty free from human bias and error” has been laid bare. 

State v. Bush, 423 P.3d 370, 395–96 (Ariz. 2018) (Winthrop, J., dissenting). Given 

that race, gender, geography, and access to resources determine the likelihood of a 

death sentence, there is no question that Kiles, a poor, young, African-American 

man, was subject to the arbitrary imposition of a capital sentence. See, e.g., Shatz 

& Dalton, supra, at 1245–51; Stephen Bright, Counsel for the Poor: The Death 

Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 

(1994). 

If a defendant similarly situated to Kiles happened to have been a woman, or 

white, or wealthy, there would likely have been no sentence of death imposed. 

Nothing regarding the nature of the crime, or the aggravating or mitigating 

circumstances, can explain this disproportionate pattern other than systemic 

discrimination on the basis of age, race, class, and sex. The discriminatory 

application of the death penalty in Arizona violates Kiles’s constitutional rights as 

guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth 

Amendment to the U.S. Constitution. This discrimination prejudiced Kiles at all 

phases of his proceedings, and he is entitled to relief. 

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Claim Twenty-Nine 

The death qualification of Kiles’s guilt- and penalty-phase juries 

was unconstitutional. 

Kiles’s convictions and death sentence result from the unconstitutional 

“death qualification” of his guilt- and penalty-phase juries, in violation of the Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates 

by specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

Before Kiles’s guilt phase, defense counsel moved to preclude the “death 

qualification” of the jury. (ROA 493 at 2–3 (citing studies showing that “death 

qualified juries are substantially more likely to convict or to convict on more serious 

charges than juries on which opponents of capital punishment are permitted to 

serve”).) The trial court denied Kiles’s request and proceeded to excuse prospective 

jurors because of their opposition to the death penalty. (See, e.g., Tr. July 7, 2000 

at 67, 157.) The trial court also excused at least one prospective juror at Kiles’s 

penalty phase because she expressed some opposition to the death penalty. (See, 

e.g., Tr. Mar. 16, 2006 at 3–5.) Because there was a substantial record made at the 

trial-court level, the Arizona Supreme Court was on notice of this claim, and it was 

impliedly exhausted during that court’s independent review in this case. See Comer 

v. Schriro, 480 F.3d 960, 981 (9th Cir. 2007) (en banc) (finding that “[e]ven if a 

petitioner fails to raise a constitutional claim in state court, the exhaustion 

requirement may be satisfied . . . where the state court itself exhausts the claim”). 

The state-court denial of this claim was contrary to or an unreasonable application 

of Supreme Court precedent; the denial further turned on an unreasonable 

determination of facts. See 28 U.S.C. § 2254(d). Accordingly, this Court may 

review the merits of this claim de novo.199

 

199 To the extent that this claim is not sufficiently exhausted, Kiles alleges he can 

overcome any default of this claim by showing that it was caused by the ineffective 

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Death qualification—“the exclusion for cause, in capital cases, of jurors 

opposed to capital punishment,” Wainwright v. Witt, 469 U.S. 412, 439 (1985) 

(Brennan, J., dissenting)—violates the Sixth, Eighth, and Fourteenth Amendments 

for two reasons. First, it produces a biased jury. Second, by excluding a segment of 

the population, death qualification violates the fair cross-section requirement of the 

Sixth Amendment. 

A defendant has the right to an unbiased and impartial jury. Morgan v. 

Illinois, 504 U.S. 719, 726–27 (1992) (identifying an impartial tribunal as a 

fundamental requirement of due process); see also Groppi v. Wisconsin, 400 U.S. 

505, 509 (1971). The “‘presence of a biased juror cannot be harmless; the error 

requires a new trial without a showing of actual prejudice.’” United States v.

Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (quoting Dyer v. Calderon, 151 F.3d 

970, 973 n.2 (9th Cir. 1998)). 

The process of death qualification, however, produces not an unbiased jury, 

but a jury predisposed both to convict and to impose death. Empirical research 

demonstrates that the death-qualification process facilitates the selection of jurors 

who are more likely to return a guilty verdict and then more likely to return a death 

sentence. See Susan D. Rozelle, The Principled Executioner: Capital Juries’ Bias 

and the Benefits of True Bifurcation, 38 Ariz. St. L.J. 769, 784–85 (2006) 

(reviewing data showing that “[t]he death qualification process today still seats 

juries uncommonly willing to find guilt, and uncommonly willing to mete out 

death”); William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s 

Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51, 61–

66 (2003) (reviewing studies demonstrating that death-qualified jurors are more 

 

assistance of appellate and state post-conviction counsel and that he was prejudiced 

by the default. See Martinez, 566 U.S. at 9; Carpenter, 529 U.S. at 453; 

but see Davila, 137 S. Ct. at 2058. Alternatively, he alleges that any procedural bar 

is neither adequate nor independent and that imposing default would be a 

miscarriage of justice. 

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likely to convict and to return a death verdict); see also Wainwright, 469 U.S. at 

460 & n.11 (Brennan, J., dissenting) (“Death-qualification works to the advantage 

of only the prosecutor; if not carefully controlled, it is [a] tool with which the 

prosecutor can create a jury perhaps predisposed to convict and certainly 

predisposed to impose the ultimate sanction.” (footnote omitted)).

Moreover, research has established that even the process of death 

qualification influences jurors to adopt pro-conviction and pro-death attitudes. See, 

e.g., Craig Haney, On the Selection of Capital Juries: The Biasing Effects of the 

Death-Qualification Process, 8 L. & Hum. Behav. 121 (1984), available at 

https://capitalpunishmentincontext.org/files/resources/deathqual/Haney1984.pdf. 

Haney’s study confirmed this: 

Exposure to death qualification increased subjects’ belief 

in the guilt of the defendant and their estimate that he would 

be convicted. It also increased their estimate of the 

prosecutor, defense attorney, and judge’s belief in the guilt 

of the defendant. The death qualification process led 

subjects to perceive both prosecutor and judge as more 

strongly in favor of the death penalty, and to believe that 

the law disapproves of people who oppose the death 

penalty. And it led jurors to choose the death penalty as an 

appropriate punishment much more frequently than 

persons not exposed to it. Thus, persons who had been 

exposed to death qualification not only differed from nondeath-qualified subjects, but they differed in ways that 

were consistently prejudicial to the interests and rights of 

the defendants. 

Id. at 128–29. The effects of death qualification are enhanced because “the voir dire 

phase of the trial represents the jurors’ first introduction to the substantive factual 

and legal issues in a case.” Powers v. Ohio, 499 U.S. 400, 412 (1991) (internal 

quotation marks omitted) (recognizing that “[t]he influence of the voir dire process 

may persist through the whole course of the trial proceedings”). Critically, when a 

sentencing jury is death-qualified and therefore biased in favor of death, any 

resulting death sentence is not a reliable indicator of the defendant’s culpability, as 

is required by the Eighth Amendment. See Woodson v. North Carolina, 428 U.S. 

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280, 305 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). 

Apart from generating a biased jury, death qualification violates the 

defendant’s right to a jury pool that represents a fair cross-section of the community. 

A jury unlikely to reflect such community views violates the Sixth Amendment. 

See Taylor v. Louisiana, 419 U.S. 522, 537 (1975). However, the process of death 

qualification permits the broad exclusion of jurors, even though some may possess 

the ability to judge impartially, regardless of their beliefs about the death penalty. 

With the exclusion of a broad segment of the community, the right to a fair crosssection is lost. 

Because Kiles’s guilt-phase and sentencing-phase juries were selected using 

death qualification, his convictions and sentences are unconstitutional under the 

Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles is 

entitled to relief. 

Claim Thirty 

The “especially heinous, cruel or depraved” aggravating 

circumstance is unconstitutionally vague. 

The move to jury sentencing in Arizona rendered the “especially heinous, 

cruel or depraved” aggravating circumstance, which the jury found proven in 

Kiles’s case, unconstitutionally vague under the Eighth and Fourteenth 

Amendments to the U.S. Constitution. Kiles incorporates by specific reference all 

facts, allegations, and arguments made elsewhere in this Petition. 

Before the sentencing phase, defense counsel moved to dismiss the “heinous, 

cruel, or depraved” aggravating circumstance, arguing that it was unconstitutionally 

vague and overbroad and that it was applied in an arbitrary and capricious manner. 

(ROA 600); see A.R.S. §13-703(F)(6) (1988). Counsel cited Maynard v. 

Cartwright, 486 U.S. 356, 363 (1988), and Gregg, 428 U.S. at 158 (joint opinion of 

Stewart, Powell, and Stevens, JJ.), to establish that the Supreme Court had 

previously struck language that was no more vague than the aggravating 

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circumstance in Kiles’s case. The trial court denied Kiles’s request without fully 

addressing the merits, ruling not that the statute was constitutional, but that the court 

could attempt to deal with the vagueness through jury instructions. (ROA 650 at 1; 

Tr. Feb. 15, 2005 at 28.)200 Because there was a substantial record made at the trialcourt level, the Arizona Supreme Court was on notice of this claim, and it was 

impliedly exhausted during that court’s independent review in this case. See Comer, 

480 F.3d at 981 (en banc) (finding that “[e]ven if a petitioner fails to raise a 

constitutional claim in state court, the exhaustion requirement may be satisfied . . . 

where the state court itself exhausts the claim”). The state-court denial of this claim 

was contrary to or an unreasonable application of Supreme Court precedent; the 

denial further turned on an unreasonable determination of facts. See 28 U.S.C. 

§ 2254(d). Accordingly, this Court may review the merits of this claim de novo.201

The Eighth Amendment requires that the aggravating circumstances within a 

state’s capital-sentencing scheme genuinely narrow the class of offenders who are 

eligible for the death penalty. See, e.g., Loving v. United States, 517 U.S. 748, 755 

(1996); Stephens, 462 U.S. at 877. To comply with the Eighth Amendment, states 

must establish a threshold below which the death penalty cannot be imposed and 

must “establish rational criteria that narrow the decisionmaker’s judgment as to 

whether the circumstances of a particular defendant’s case meet the threshold.” 

 

200 “I’m going to deny the request. You’ve made a great record. We’ll see where we 

end up. I feel hesitant to just say we’re totally precluded at this point from at least 

attempting to fashion some kind of instruction that—that gets it right for the jury 

and for all of us.” (Tr. Feb. 15, 2005 at 28.) 

201 To the extent that this claim is not sufficiently exhausted, Kiles alleges he can 

overcome any default of this claim by showing that it was caused by the ineffective 

assistance of appellate and state post-conviction counsel and that he was prejudiced 

by the default. See Martinez, 566 U.S. at 9 (2012); Carpenter, 529 U.S. at 453; 

but see Davila, 137 S. Ct. at 2058. Alternatively, he alleges that any procedural bar 

is neither adequate nor independent and that imposing default would be a 

miscarriage of justice. 

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McCleskey, 481 U.S. at 305; see also Lowenfield, 484 U.S. at 231; Stephens, 462 

U.S. at 877. Further, a state’s sentencing procedure must suitably direct and limit 

the sentencing body’s discretion “so as to minimize the risk of wholly arbitrary and 

capricious action.” Stephens, 462 U.S. at 874 (quoting Gregg, 428 U.S. at 189 (joint 

opinion of Stewart, Powell, and Stevens, JJ.)). Vague standards are unconstitutional 

because they fail to adequately “channel the sentencing decision patterns of juries.” 

Gregg, 428 U.S. at 195 n.46 (joint opinion of Stewart, Powell, and Stevens, JJ.). 

The Supreme Court has repeatedly held that, on their face, aggravating 

circumstances based on the heinousness, cruelty, or depravity of a murder fail to 

narrow death-penalty eligibility because their text is too vague to adequately guide 

the discretion of the sentencer. See Cartwright, 486 U.S. at 363 (“There is nothing 

in these few words, standing alone, that implies any inherent restraint on the 

arbitrary and capricious infliction of the death sentence.” (quoting Godfrey, 446 

U.S. at 428–29)); see also Walton, 497 U.S. at 654, overruled on other grounds by

Ring, 536 U.S. at 584 (finding that Arizona’s “especially heinous, cruel or 

depraved” aggravating circumstance is facially vague). The plain language of the 

heinous, cruel, or depraved aggravating circumstance could easily apply to any 

intentional or knowing homicide and therefore fails to “suitably direct[] and limit[]” 

the sentencer’s discretion in imposing the death penalty. See Gregg, 428 U.S. at 

189. 

In Walton, the Supreme Court noted that “there is no serious argument that 

Arizona’s ‘especially heinous, cruel or depraved’ aggravating factor is not facially 

vague.” 497 U.S. at 654. The Court went on to conclude that while Arizona’s 

especially heinous, cruel, or depraved aggravating circumstance was facially vague, 

it did not violate the Eighth and Fourteenth Amendments because sentencing was 

the responsibility of the trial judge, and the judge could be presumed to follow the 

narrowed definition of the aggravating circumstance as construed by the Arizona 

Supreme Court. Id. at 653–54. However, Walton does not apply in the context of 

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jury sentencing. Id. at 653 (distinguishing prior cases which struck similar 

aggravating circumstance under jury-sentencing schemes because the “logic of 

those cases has no place in the context of sentencing by a trial judge”). 

With the shift to jury sentencing in Arizona, this aggravating circumstance 

became unconstitutionally vague. When the jury is the factfinder, the vague 

statutory definition of especially cruel does not suffice. How the jury interprets this 

factor can “only be the subject of sheer speculation.” Godfrey, 446 U.S. at 429 

(discussing the aggravating circumstance of “outrageously or wantonly vile, 

horrible and inhuman”). A standardless capital-punishment statute allows for the 

imposition of the death penalty in an arbitrary and capricious manner, violating the 

Eighth Amendment. Cartwright, 486 U.S. at 361–62. 

In addition, state-court interpretations of the heinous, cruel, or depraved 

aggravating circumstance, and any jury instructions based on such interpretations, 

have failed to narrow the class of offenders eligible for the death penalty. For 

example, in Arizona, a murder in which the killer uses excessive force is considered 

“cruel” for purposes of the death penalty. State v. Summerlin, 675 P.2d 686, 696 

(Ariz. 1983). But using insufficient force to commit a murder is also “cruel.” See 

State v. Chaney, 686 P.2d 1265, 1282 (Ariz. 1984) (finding “cruelty” because 

defendant used insufficient force, causing the victim to suffer). Given the 

susceptibility of this aggravating circumstance to arbitrary imposition, this Court 

cannot be sure that Kiles’s death sentence was not imposed in a wanton and freakish 

manner. Cf. Gregg, 428 U.S. at 195. Thus, the fact that the trial court defined the 

element of cruelty as whether the infliction of pain was “in an especially wanton” 

or “insensitive” manner did not constitutionally narrow this facially vague 

aggravating circumstance. (ROA 909 at 12.) If anything, the terms used by the trial 

court make the aggravating circumstance more arbitrary and fluid. 

In any event, jury instructions cannot cure the unconstitutional vagueness. 

Jurors, unlike judges who see a range of first-degree murders, have no points of 

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comparison as to whether a particular murder imposes “extreme” pain or mental 

anguish. Jurors are quite likely to believe that every murder causes extreme pain or 

anguish. Cf. Cartwright, 486 U.S. at 364 (“[A]n ordinary person could honestly 

believe that every unjustified, intentional taking of human life is ‘especially 

heinous.’”). Additionally, in this case, the definitions offered to the jury were 

hopelessly convoluted. For example, the jury was instructed that it could consider 

whether the murder was “senseless” to help determine whether the crime was 

“heinous or depraved.” (ROA 909 at 13.) Recognizing that all murders are 

senseless, the court tried to clarify this further, instructing the jury that a 

“‘senseless’ murder is one that is unnecessary to achieve Defendant’s objective.” 

(ROA 909 at 13–14.) This “clarification” only further confused and expanded the 

aggravating circumstance. See Cartwright v. Maynard, 822 F.2d 1477, 1489 (10th 

Cir. 1987) (“Vague terms do not suddenly become clear when they are defined by 

reference to other vague terms.”). The jury instructions in the instant case failed to 

cure the statute’s unconstitutionality; instead, they further enabled the jury to 

capriciously apply the aggravating circumstance. 

Arizona’s shift to jury sentencing undermines Walton’s analysis on whether 

the “especially heinous, cruel or depraved” aggravating circumstance passes 

constitutional muster. Arizona’s heinous, cruel, or depraved aggravating 

circumstance is vague and overbroad and fails to adequately narrow the class of 

offenders subject to the death penalty. Accordingly, Kiles was sentenced to death 

in violation of his Eighth and Fourteenth Amendment rights, and he is entitled to 

relief. 

Claim Thirty-One 

Arizona’s prior felony conviction aggravating circumstance is 

unconstitutionally vague. 

The aggravating circumstance of a prior conviction does not genuinely 

narrow the class of death-eligible offenders and therefore violates the Eighth and 

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Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

reference all facts, allegations, and arguments made elsewhere in this Petition. 

While Kiles did not present this claim in state court, the Arizona Supreme 

Court implicitly considered the claim when it affirmed this aggravating 

circumstance during its independent review of the aggravating factors and 

mitigating circumstances. See Kiles, 213 P.3d at 187–88; see also Comer, 480 F.3d 

at 981 (en banc) (finding that “[e]ven if a petitioner fails to raise a constitutional 

claim in state court, the exhaustion requirement may be satisfied . . . where the state 

court itself exhausts the claim”). The denial of this claim (1) was contrary to, or 

involved an unreasonable application of, clearly established federal law, and (2) 

was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).202 

The Eighth Amendment requires that a state’s capital-sentencing scheme 

genuinely narrow the class of offenders eligible for the death penalty, which some 

states achieve by requiring proof of at least one aggravating circumstance before a 

death sentence can be imposed. See Stephens, 462 U.S. at 877; Loving, 517 U.S. at 

755. Aggravating circumstances that do not appropriately limit application of the 

death penalty are unconstitutional because they fail to adequately channel the 

sentencing discretion of the jury. Cartwright, 486 U.S. at 361–62. 

The (F)(2) aggravating circumstance applies when the defendant was 

previously convicted of a violent offense. A.R.S. § 13-703(F)(2) (1988). Under 

Arizona law, a prior conviction satisfies the (F)(2) circumstance if “by its statutory 

definition” the prior conviction “involves violence or the threat of violence on 

 

202 To the extent that this claim was not adequately presented below, Kiles alleges 

he can overcome any default of this claim by showing cause and prejudice, 

including because of the ineffective assistance of appellate and state postconviction counsel. See Martinez, 566 U.S. at 9; Carpenter, 529 U.S. at 453; 

Strickland, 466 U.S. at 687–88; but see Davila, 137 S. Ct. at 2058. Alternatively, 

any procedural bar is neither adequate nor independent, and imposing default would 

be a miscarriage of justice. If this claim was not adjudicated on the merits below, 

the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review, and the Court may consider the merits of the claim de novo. 

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another person.” State v. Gillies, 662 P.2d 1007, 1018 (Ariz. 1983). The trial court 

may not look to the underlying facts of the prior conviction. See id. (“We cannot 

allow what is, in effect, a second trial on defendant’s prior conviction to establish 

the existence of an A.R.S. § 13-703(F)(2) aggravating circumstance.”). 

Because the (F)(2) aggravating circumstance does not discriminate among 

prior violent felonies, it impermissibly fails to genuinely narrow the class of deatheligible defenders. See Loving, 517 U.S. at 755. The (F)(2) aggravating 

circumstance fails to differentiate between a defendant who has multiple prior 

murder convictions as a principal and a defendant who has been convicted of a 

single, far less violent offense as an accomplice. As a result, such a broad swathe 

of capital defendants satisfy this aggravating circumstance that it does not “establish 

rational criteria that narrow the decisionmaker’s judgment” as to whether death may 

be an appropriate sentence. McCleskey, 481 U.S. at 305. 

Kiles was sentenced on the basis of an unconstitutional aggravating 

circumstance, and he is therefore entitled to relief. See Johnson v. Mississippi, 486 

U.S. 578, 580, 590 (1988). 

Claim Thirty-Two 

Kiles is innocent of first-degree murder and of the death penalty. 

Because Kiles is innocent both of first-degree murder in the death of Valerie 

Gunnel and of the death penalty, his conviction and sentence violate the Fifth, Sixth, 

Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles incorporates 

by specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

Kiles did not present this claim in state court. However, because declining to 

hear this claim on the merits would result in a fundamental miscarriage of justice, 

this Court should disregard any default.203 See Coleman v. Thompson, 501 U.S. 722, 

 

203 Indeed, procedural default should not apply to freestanding innocence claims 

precisely because of the gravity of the constitutional interests at stake. 

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735 n.1 (1991). Alternatively, Kiles alleges he can overcome any default of this 

claim by showing that it was caused by the ineffective assistance of appellate and 

state post-conviction counsel and that he was prejudiced by the default. 

See Martinez, 566 U.S. at 9; Carpenter, 529 U.S. at 453; but see Davila, 137 S. Ct. 

at 2058. He further alleges that any procedural bar asserted by Respondents is 

neither adequate nor independent. As this claim has not been adjudicated on the 

merits by the state courts, the barrier to relief imposed by 28 U.S.C. § 2254(d) does 

not apply, and this Court may consider the merits of the claim de novo. 

Kiles is innocent of the crime of first-degree murder with which he was 

charged. At the time of the crime, first-degree murder under Arizona law required 

either premeditation or felony murder, meaning that the killing occurred in the 

course of, in furtherance of, or in the immediate flight from an enumerated offense. 

See A.R.S. § 13-1105(A) (1988). Kiles was not charged with felony murder in the 

killing of Valerie Gunnel; he was charged with, and convicted of, only premeditated 

murder. (See ROA 1 at 1–2; ROA 482 at 1.) However, as detailed previously, Kiles 

did not premeditate the murder. Not only did he have a tendency toward impulsivity 

as a result of extensive childhood trauma, prior head injuries, and the disease of 

addiction, see supra, Claim 3, he also was in a drug-induced psychosis at the time 

of the crime and was therefore, at that moment, incapable of premeditating, see 

supra, Claim 6. The killing was unplanned; it involved no time for reflection and 

no actual reflection. Instead, when he felt provoked by Gunnel’s slap, he 

immediately and reflexively picked up a nearby instrument and attacked. Because 

there was no premeditation involved, no rational trier of fact could find proof of 

guilt beyond a reasonable doubt, and Kiles is innocent of first-degree murder. See 

Herrera v. Collins, 506 U.S. 390, 429 (1993) (White, J., concurring). Accordingly, 

neither his first-degree murder conviction nor his resultant death sentence can stand. 

Kiles is independently innocent of the death penalty. Kiles was death-eligible 

for the murder of Gunnel because the jury found that the State had proven beyond 

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a reasonable doubt the three aggravating circumstances it had alleged: (1) prior 

conviction of a violent felony, A.R.S. § 13-703(F)(2) (1988), (2) the offense was 

“especially heinous, cruel or depraved,” id. § 13-703(F)(6), and (3) multiple 

homicides during the commission of the offense, id. § 13-703(F)(8). (See ROA 911 

at 11–13.) First, as discussed earlier, Kiles’s 1986 aggravated-assault conviction is 

an invalid basis for the (F)(2) aggravating circumstance; as that conviction is the 

sole support for that aggravator, the (F)(2) aggravating circumstance must be 

stricken. See, e.g., supra, Claim 5. As illustrated by Claim 12 and Claim 11, supra, 

among others, no rational trier of fact could find any of these three aggravating 

circumstances beyond a reasonable doubt. See Herrera, 506 U.S. at 429 (White, J., 

concurring). Moreover, the (F)(2) and (F)(6) aggravating circumstances are 

unconstitutionally overbroad and thus cannot stand as aggravating circumstances in 

this case. See infra Claim 30; Claim 31. Because no constitutional aggravating 

circumstance supported by the evidence exists in this case, Kiles is innocent of the 

death penalty, and he is entitled to relief from his capital sentence. 

Claim Thirty-Three 

Kiles’s death sentence constitutes an impermissible violation of the 

Ex Post Facto Clause. 

Kiles’s death sentence results from the unconstitutional ex post facto 

application of Arizona’s current death-penalty statute to his crime. Kiles 

incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

This claim was not raised in state court. Kiles alleges he can overcome any 

default of this claim by showing that it was caused by the ineffective assistance of 

appellate and state post-conviction counsel and that he was prejudiced by the 

default. See Martinez, 566 U.S. at 9; Carpenter, 529 U.S. at 453; but see Davila, 

137 S. Ct. at 2058. Kiles will demonstrate at an evidentiary hearing that appellate 

and post-conviction counsel’s performance fell below the standards of minimally 

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competent capital attorneys and that their failures prejudiced him. Alternatively, he 

alleges that any procedural bar is neither adequate nor independent and that 

imposing default would be a miscarriage of justice. Because this claim has not been 

adjudicated on the merits by the Arizona state courts, the barrier to relief imposed 

by 28 U.S.C. § 2254(d) does not apply, and the Court may consider the merits of 

the claim de novo. 

Article I, section 10 of the U.S. Constitution prohibits ex post facto laws. In 

Weaver v. Graham, the Supreme Court recognized that the problem with ex post 

facto laws is “the lack of fair notice and governmental restraint when the legislature 

increases punishment beyond what was prescribed when the crime was 

consummated.” 450 U.S. 24, 30 (1981). Pursuant to Weaver, a newly enacted law 

is being applied in violation of the ex post facto doctrine when (1) the law “appl[ies] 

to events occurring before its enactment,” and (2) the law disadvantages the 

defendant with respect to a substantial, not procedural, right. Id. at 29 & n.12. 

The application of Arizona’s current death-penalty scheme to Kiles 

constitutes an ex post facto violation under Weaver. First, the offense for which 

Kiles was convicted and sentenced to death occurred on February 10, 1989. (ROA 

1 at 1–2.) The statute under which Kiles was charged capitally in 1989 was 

unconstitutional. (See ROA 1 at 1–2 (citing A.R.S. § 13-703)); Ring, 536 U.S. at 

609 (striking down Arizona’s then-extant capital-sentencing statute as 

unconstitutional under the Sixth Amendment because it did not require that a jury 

find the aggravating circumstances that rendered a capital defendant death-eligible). 

The statute enforced at Kiles’s sentencing trial was not enacted until August 1, 

2002, well over a decade after the crime in question. 2002 Ariz. Sess. Laws, 5th 

Spec. Sess., ch.1. The newly enacted statute was therefore applied retrospectively 

to a crime predating its enactment. See Weaver, 450 U.S. at 29. 

Second, the enactment of the new statute changed substantial rights and 

disadvantaged Kiles. In compliance with Ring, the statute required that a jury find 

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the enumerated aggravating factors, which “operate as ‘the functional equivalent of 

an element of a greater offense.’” 536 U.S. at 609 (quoting Apprendi v. New Jersey, 

530 U.S. 466, 494 n.19 (2000)). Further, the new law expanded the State’s authority 

to present “any evidence that demonstrates that the defendant should not be shown 

leniency.” A.R.S. § 13-752(G). The new law also allowed for victim-impact 

evidence in any format, id. § 13-752(Q), and it did not require any special verdict 

form. See A.R.S. § 13-752. Such changes implicated substantial rights and

disadvantaged Kiles. At its core, the change allowed Arizona to sentence Kiles to 

death even though no constitutionally sound death-penalty statute existed at the 

time of the crime. 

The application to Kiles of Arizona’s current death-penalty statute 

“increase[d] the possible penalty” he faced, Lindsey v. Washington, 301 U.S. 397, 

401 (1937), thereby violating the Ex Post Facto Clause. But see Dobbert v. Florida, 

432 U.S. 282, 294 (1977); Summerlin, 542 U.S. at 358. Kiles is entitled to relief. 

Claim Thirty-Four 

Executing Kiles after more than 28 years on death row violates the 

Eighth and Fourteenth Amendments. 

To subject Kiles to execution after nearly 30 years either charged with a 

capital crime or on death row violates the Eighth and Fourteenth Amendments to 

the U.S. Constitution. Kiles incorporates by specific reference all facts, allegations, 

and arguments made elsewhere in this Petition. 

Kiles presented this claim in his direct appeal. (DA2 Dkt. 86 at 97.) For the 

reasons set forth in Claim 17, supra, 28 U.S.C. § 2254(d) places no limitation on 

relief. In the event that this Court determines that this claim is not yet ripe, Kiles 

nevertheless intends to preserve it for future review in light of Allen v. Ornoski, 435 

F.3d 946, 958 (9th Cir. 2006). 

The Eighth and Fourteenth Amendments require that state-imposed

punishment remain within civilized standards. See Robinson v. California, 370 U.S. 

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660, 675 (1962) (Douglas, J., concurring). Kiles has been in prison for nearly 30 

years, of which he has spent approximately 20 years on death row.204 For several 

reasons, executing Kiles after so long on death row does not fall within those 

civilized bounds. 

First, executing Kiles after so long spent on death row is inconsistent with 

the history of the Eighth Amendment and foundational British and American 

jurisprudence. At the time the Bill of Rights was adopted, the Anglo-American legal 

tradition—which had a direct influence on the framers of the U.S. Constitution—

had uniformly denounced undue delays between death sentences and executions as 

cruel and unusual. See, e.g., Blackstone’s Commentaries on the Laws of England, 

Book IV, reprinted in 2 Jones, Blackstone at 2650 (1976) (“[I]t has been well 

observed, that it is of great importance, that [capital] punishment should follow the 

crime as early as possible.”); Beccaria, An Essay on Crimes and Punishments, ch. 

XIX at 73 (5th ed. 1804) (immediate punishment will be more just “because it 

spares the criminal the cruel and superfluous torment of uncertainty . . .; and 

because the privation of liberty, being [in and of itself] a punishment, ought to be 

inflicted before condemnation, but for as short a time as possible”); see also, e.g., 

Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (there is no doubt the English 

Declaration of Rights of 1689, which prohibited “cruel and unusual punishments,” 

is the “antecedent of our constitutional text[s]”); Ex parte Grossman, 267 U.S. 87, 

108–09 (1925) (Eighteenth-century English criminal jurisprudence directly 

relevant to determining what framers intended in drafting Bill of Rights). 

The framers’ writings confirm that they also viewed such inordinate delay as 

inherently “cruel and unusual.” See, e.g., 2 Robert Green McCloskey, The Works 

 

204 That Kiles has been imprisoned for so long before entering federal-habeas 

proceedings is not his own fault, but is largely attributable to his counsel’s 

ineffective assistance at Kiles’s initial state-court proceedings, resulting in a new 

trial and delays outside of Kiles’s control between his second trial and sentencing 

phases. 

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of James Wilson at 629–30 (1957); 2 The Papers of John Marshall 208 (Univ. of 

N.C. Press 1977) (clemency petition filed by Marshall and others sought 

commutation in part because prisoner’s execution was delayed five months). 

Historically, then, executing Kiles after nearly 30 years charged with a capital crime 

or on death row would have been considered cruel and unusual. 

Second, such a punishment is no less cruel and unusual under modern 

jurisprudence. The current death-penalty scheme is purported to serve two 

purposes: retribution and deterrence. Gregg, 428 U.S. at 183 (joint opinion of 

Stewart, Powell, and Stevens, JJ.). But, the “longer the delay, the weaker the 

justification for imposing the death penalty in terms of punishment’s basic 

retributive or deterrent purposes.” Knight, 528 U.S. at 990 (mem.) (Breyer, J., 

dissenting from denial of certiorari); see also Lackey, 514 U.S. at 1045 (mem.) 

(Stevens, J., dissenting from denial of certiorari) (“It is arguable that neither 

[retribution nor deterrence] retains any force for prisoners who have spent some 17 

years under a sentence of death.”). The lengthy delay between the day of 

incarceration and the day of execution “can inflict ‘horrible feelings’ and ‘in (sic) 

immense mental anxiety amounting to a great increase of the offender’s 

punishment.’” Foster v. Florida, 537 U.S. 990, 992 (2002) (mem.) (Breyer, J., 

dissenting from denial of certiorari). After inflicting such anxiety on the petitioner 

by making him wait long periods before carrying out his death sentence, the State 

hardly furthers the goal of retribution by finally executing him. See, e.g., District 

Attorney for the Suffolk Cnty. Dist. v. Watson, 411 N.E.2d 1274, 1287 (Mass. 1980). 

Further, the added deterrent effect of executing someone who has spent a long time 

on death row awaiting his execution is slight indeed. See Coleman v. Balkcom, 451 

U.S. 949, 952 (1981) (mem.) (Stevens, J., respecting denial of certiorari). When the 

death penalty ceases to realistically further the purposes of retribution and 

deterrence, its imposition is simply “the pointless and needless extinction of life 

with only marginal contributions to any discernible social or public purposes.” 

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Lackey, 514 U.S. at 1046 (mem.) (Stevens J., dissenting from denial of certiorari) 

(quoting Furman, 408 U.S. at 312 (White, J., concurring)). “A penalty with such 

negligible returns to the State would be patently excessive and cruel and unusual 

punishment violative of the Eighth Amendment.” Id. 

Any penological goals served in 1990, when Kiles was first sentenced to 

death, no longer apply. Executing Kiles, almost three decades after the crime for 

which he was condemned, can have no deterrent or retributive purpose. 

Third, the stress of living under threat of death for lengthy periods is so 

oppressive that it, on its own, can constitute cruel and inhuman treatment. See infra, 

Claim 37. Conditions of confinement on death row can be “so degrading and 

brutalizing to the human spirit as to constitute psychological torture.” People v. 

Anderson, 493 P.2d 880, 894 (Cal. 1972), superseded as stated in Strauss v. Horton, 

207 P.3d 48 (Cal. 2009); see also Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) 

(Frankfurter, J., dissenting) (“[T]he onset of insanity while awaiting execution of a 

death sentence is not a rare phenomenon.”); In re Medley, 134 U.S. 160, 172 (1890) 

(“[W]hen a prisoner sentenced by a court to death is confined in the penitentiary 

awaiting execution of the sentence, one of the most horrible feelings to which he 

can be subjected during that time is the uncertainty during the whole of it.”). 

“Whatever one believes about the cruelty of the death penalty itself, this violence 

done to the prisoner’s mind must afflict the conscience of enlightened government 

and give the civilized heart no rest.” Watson, 411 N.E.2d at 1291 (Liacos, J., 

concurring). Certainly, then, such cruel treatment also renders any further 

punishment, namely execution, unconstitutional. 

Finally, Kiles spent 12 years in solitary confinement—in the particularly 

oppressive conditions that prevailed on Arizona’s death row—after his 2006 

sentencing. The Supreme Court in 1890 recognized time spent in solitary 

confinement awaiting execution as “an additional punishment of the most important 

and painful character,” In re Medley, 134 U.S. 160, 171 (1890) (Brewer and 

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Bradley, JJ., dissenting), and “research still confirms what [the] Court suggested 

over a century ago: Years on end of near-total isolation exact a terrible price.” Davis 

v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring). Accordingly, the 

American Bar Association and the United Nations Special Rapporteur on Torture 

have recommended limitations on the use of solitary confinement. See Glossip, 135 

S. Ct. at 2765 (Breyer, J., dissenting). Indeed, foreign courts have found that 

extended delay in the imposition of a death sentence “renders ultimate execution 

inhuman, degrading, or unusually cruel.” Knight, 528 U.S. at 990 (Breyer, J., 

dissenting from denial of certiorari). Execution after 12 years in solitary 

confinement is cruel and unusual. 

Given the length of time Kiles has spent on death row, the conditions of 

confinement, including the unique stress of living under threat of execution, 

historical understandings of “cruel and unusual” punishment, and the evolving 

standards of decency, executing Kiles at this time would constitute cruel and 

unusual punishment in violation of the Eighth and Fourteenth Amendments to the 

U.S. Constitution. 

Claim Thirty-Five 

Due process requires that this Court re-evaluate Kiles’s death 

sentence in light of the significant changes to Kiles’s circumstances 

in the 12 years since he was sentenced. 

Kiles’s death sentence must be reevaluated to satisfy the due-process and 

reliability requirements of the Fifth, Eighth, and Fourteenth Amendments to the U.S 

Constitution. Kiles incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. 

This claim was not raised in state court because this claim previously was not 

available or ripe for review, and there is no longer any mechanism for state merits 

review. See 28 U.S.C. § 2254(b); see also Panetti v. Quarterman, 551 U.S. 930, 

947 (2007). Because this claim has not been adjudicated by Arizona state courts, 

the limitations on relief imposed by 28 U.S.C. § 2254(d) do not restrict review, and 

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the Court may consider the claim de novo. 

Kiles was sentenced to death over 12 years ago; he is currently approaching 

60 years of age and has an impeccable prison record. In light of these circumstances, 

due process requires that his death sentence be re-evaluated. 

“The fundamental requirement of due process is the opportunity to be heard 

‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 

319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). A capital 

sentencing “must satisfy the requirements of the Due Process Clause,” Gardner v. 

Florida, 430 U.S. 349, 358 (1977) (plurality opinion), and capital defendants retain 

a liberty interest in life even after conviction and sentence, see Ohio Adult Parole 

Auth. v. Woodard, 523 U.S. 272, 288 (1998) (O’Connor, J., concurring in part and 

concurring in the judgment, joined by Souter, J., Ginsburg, J., and Breyer, J.); id. at 

290–91 (Stevens, J., concurring in part and dissenting in part). In accordance with 

these principles and the heightened reliability requirement for the death penalty, if 

a defendant’s circumstances change significantly between the time when his death 

sentence is imposed and the time when it will be carried out, due process requires 

that the propriety of the sentence be re-evaluated in light of the changed 

circumstances and characteristics of the defendant. See Kelly v. Brewer, 525 F.2d 

394, 399–400 (8th Cir. 1975) (finding due process required meaningful periodic 

reviews of inmates in segregation to determine if segregation is still appropriate). 

The Court should consider whether a capital sentence is still appropriate for 

Kiles. Since Kiles was sentenced in 2006, he has been successfully incarcerated, 

and he has demonstrated that he is non-violent in a structured prison setting. 

Moreover, he has been a model of good behavior. See State v. Watson, 628 P.2d 

943, 945 (Ariz. 1981) (setting aside death sentence in part because of defendant’s 

good conduct while in prison); State v. Richmond, 886 P.2d 1329, 1336–37 (Ariz. 

1994) (reducing death sentence to life imprisonment in part because of defendant’s 

changed character), abrogated on other grounds by State v. Mata, 916 P.2d 1035 

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(Ariz. 1996). 

Recently, Arizona made significant changes to the housing of death-row 

prisoners; these changes diminish the differences between the incarceration 

conditions of those sentenced to life without the possibility of parole and those 

sentenced to death. See generally Gabriella Robles, Condemned to Death—And 

Solitary Confinement, The Marshall Project (July 23, 2017), https://www. 

themarshallproject.org/2017/07/23/condemned-to-death-and-solitary-confinement 

(explaining policy change allowing death-row prisoners with suitable disciplinary 

records to be housed in lower-security settings). Under the old rules, death-row 

prisoners were automatically classified as maximum security and kept in solitary 

confinement. New rules permit death-row prisoners who do not pose a security 

threat to be kept in lower-security settings with more out-of-cell time, contact visits 

with family and legal counsel, outdoor group recreation, and the opportunity to 

work or take education courses. In recognition of Kiles’s consistently good 

behavior on death row, Kiles was granted close-custody status and moved to the 

lower-security facility. He continues to do well in this setting. 

In addition, since his reclassification, the Arizona Department of Corrections 

has entrusted Kiles to be an aide for another prisoner constrained by disability 

issues. Kiles assists the prisoner with reading and writing, cleans his cell for him, 

and ensures that he is able to participate in activities. Kiles has therefore contributed 

to smooth functioning of the prison and to the well-being of the prison community. 

Kiles is now approaching 60 years of age. He is not the same person who was 

sentenced to death in 2006 and certainly not the same person he was when first 

sentenced to death in 1990. He has not committed any violence in this setting, is 

unlikely to do so in the future, and should be able to continue being of assistance to 

others, especially given that he is incarcerated with an aging population 

increasingly in need of such aid. Due process dictates that Kiles have the 

appropriateness of his death sentence re-evaluated in light of the changes that have 

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occurred since he was sentenced. At an evidentiary hearing, Kiles will demonstrate 

that these changes are significant and that they change the calculus of whether his 

death sentence is an appropriate punishment. Accordingly, Kiles is entitled to relief.

Claim Thirty-Six 

Executing Kiles is unconstitutional because he has a serious mental 

illness. 

Because Kiles has a serious mental illness, his sentence of death violates the 

Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Kiles 

incorporates by specific reference all facts, allegations, and arguments made 

elsewhere in this Petition. 

This claim was not raised in state court. Kiles alleges he can overcome any 

default of this claim by showing that it was caused by the ineffective assistance of 

appellate and state post-conviction counsel and that he was prejudiced by the 

default. See Martinez, 566 U.S. at 9; Carpenter, 529 U.S. at 453; but see Davila, 

137 S. Ct. at 2058. Kiles will demonstrate at an evidentiary hearing that appellate 

and post-conviction counsel’s performance fell below the standards of minimally 

competent capital attorneys and that their failures prejudiced him. Alternatively, he 

alleges that any procedural bar is neither adequate nor independent and that 

imposing default would be a miscarriage of justice. Because this claim has not been 

adjudicated on the merits by the Arizona state courts, the barrier to relief imposed 

by 28 U.S.C. § 2254(d) does not apply, and the Court may consider the merits of 

the claim de novo. 

Kiles suffers from serious mental illness. Though experts differed on their 

specific diagnoses at his trial, they all agreed that Kiles suffered from serious mental 

illness. (See Tr. May 22, 2006 at 32–34 (counsel listing in closing the experts’ 

various mental-illness diagnoses).) Additional experts hired in state post-conviction 

proceedings similarly found that Kiles was mentally ill. (See ROA 1189 at 60.) As 

a result of Kiles’s serious mental illness discussed throughout this Petition, he 

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suffered substantial impairment of his ability to appreciate and understand the 

actions of others, to act rationally, to make fully reasoned decisions, and to 

otherwise conform his conduct to the requirements of the law and societal norms. 

The imposition of the death penalty on an individual like Kiles, who suffers from 

mental illness that limits his ability to modulate or control his behavior, violates his 

right to be free from cruel and unusual punishment, and his rights to a fair trial, due 

process, equal protection, and punishment that is not arbitrarily, wantonly, and 

capriciously imposed, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth 

Amendments. 

The Eighth Amendment precludes the imposition of punishments that are 

“cruel and unusual,” as assessed according to the “evolving standards of decency 

that mark the progress of a maturing society.” Trop, 356 U.S. at 100, 101. “The 

Eighth Amendment ‘is not fastened to the obsolete but may acquire meaning as 

public opinion becomes enlightened by a humane justice.’” Hall v. Florida, 134 S. 

Ct. 1986, 1992 (2014) (quoting Weems v. United States, 217 U.S. 349, 378 (1910)). 

The evolving standards of decency embodied in the Eighth and Fourteenth 

Amendments demand that the imposition of the death penalty on seriously mentally 

ill defendants be recognized as unconstitutional. 

Whether someone is constitutionally eligible for the death penalty under the 

Eighth Amendment turns on whether he is sufficiently “culpable” to deserve such 

a penalty. See, e.g., Tison v. Arizona, 481 U.S. 137, 149 (1987); California v. 

Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). Personal culpability 

hinges upon a defendant’s ability to make fully reasoned decisions and conform his 

behavior to societal norms. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) 

(plurality opinion). Moreover, in order for the death penalty to be constitutional, it 

must serve either the goal of retribution or that of deterrence of capital crimes; when 

it does not, “it ‘is nothing more than the purposeless and needless imposition of 

pain and suffering,’ and hence an unconstitutional punishment.” Enmund v. 

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Florida, 458 U.S. 782, 798 (1982) (quoting Coker v. Georgia, 433 U.S. 584, 592 

(1977) (plurality opinion)). Based on these considerations, in Atkins, 536 U.S. at 

304, Simmons, 543 U.S. at 551, and Ford v. Wainwright, 477 U.S. 399 (1986), the 

Supreme Court ruled categorically unconstitutional the execution of, respectively, 

intellectually disabled individuals, juveniles, and those who are incompetent. 

The reasoning underlying Atkins and Simmons, in particular, applies with 

equal force to a person who suffers from serious mental illness like Kiles. Those 

who are seriously mentally ill are defined by characteristics that diminish their 

culpability in precisely the ways the Supreme Court has relied on in establishing 

the categorical exemptions in Atkins and Simmons. “The diminished capacity of the 

intellectually disabled lessens moral culpability and hence the retributive value of 

the punishment.” Hall, 134 S. Ct. at 1993. For example, in Atkins, one cited 

characteristic that decreased the culpability of people with intellectual disability 

was “significant limitations in adaptive skills such as communication, self-care, and 

self-direction.” 536 U.S. at 318. Serious mental illness similarly results in extreme 

functional impairments and limitations in adaptive behavior. See Helen Shin, Note, 

Is the Death of the Death Penalty Near? The Impact of Atkins and Roper on the 

Future of Capital Punishment for Mentally Ill Defendants, 76 Fordham L. Rev. 465, 

488 (2007). The Atkins Court also focused on the cognitive deficiencies suffered by 

the intellectually disabled. Atkins, 536 U.S. at 320. Mentally ill individuals typically 

experience disorganized thinking and “deficits in sustaining attention and 

concentration.” Indiana v. Edwards, 544 U.S. 164, 176 (2008). The nature of the 

impairments relied on in Atkins and Simmons as indicators of lessened culpability 

are directly analogous to the impairments suffered by the seriously mentally ill. 

Moreover, in holding the death penalty unconstitutional for juveniles, the 

Supreme Court reasoned that the limitations of juveniles make them less likely to 

engage in the “cost-benefit analysis that attaches any weight to the possibility of 

execution.” Simmons, 543 U.S. at 571–72 (quoting Thompson, 487 U.S. at 837). 

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The same is true of those with serious mental illness. They suffer from directly 

comparable deficits in cognitive and adaptive functioning, thus the distant 

possibility of execution does not act as an effective deterrent. Any decision-making 

process is infected by the deficits in perception that are characteristic of serious 

mental illness; in short, “[c]ertainly no one believes that the death penalty can deter 

people from becoming psychotic.” Amnesty Int’l, United States of America: The 

Execution of Mentally Ill Offenders 50, Al Index AMR 51/003/2006 (Jan. 2006), 

www.amnesty.org/en/documents/AMR51/003/2006/en/. 

A person who is seriously mentally ill is also likely to have his or her rights 

to a fair trial and to the effective assistance of counsel compromised by illness. The 

Supreme Court has reasoned that the intellectually disabled face “a special risk of 

wrongful execution” because they are more likely to give false confessions, are 

often poor witnesses, and are less able to give meaningful assistance to their 

counsel. Hall, 134 S. Ct. at 1993 (quoting Atkins, 536 U.S. at 320–21). The same is 

true of those with serious mental illness. See, e.g., Brandon L. Garrett, The 

Substance of False Confessions, 62 Stan. L. Rev. 1051, 1067 (2010) (“[P]olice have 

long known that suspects may admit to crimes that they did not commit for a range 

of reasons, including mental illness.”). 

Finally, both legal and professional mental-health organizations have 

expressed their opposition to the execution of the seriously mentally ill. The ABA 

and most major mental health professional associations in the United States 

recognize that executing mentally ill persons serves no penological purpose, and 

advocate an end to executing mentally ill offenders. See, e.g., ABA, Death Penalty 

Representation Project, Mental Illness Resolution (2006), www.americanbar.org/ 

groups/committees/death_penalty_representation/resources/dp-policy/mental-illne 

ss-2006.html; Am. Psychiatric Ass’n Position Statement, Diminished 

Responsibility in Capital Sentencing (2004). 

The imposition of the death penalty on the seriously mentally ill, like its 

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imposition on the intellectually disabled, juveniles, and incompetent, does not 

further either retribution or deterrence. It amounts to the infliction of gratuitous 

suffering. As executing Kiles, who is seriously mentally ill, serves no cognizable 

penological end, Kiles’s sentence is unconstitutional, and he is entitled to relief. 

Claim Thirty-Seven 

Subjecting Kiles to execution in Arizona will deny his fundamental 

human rights under binding international law norms. 

The death penalty as carried out in Arizona denies Kiles’s fundamental 

human rights under international law and thereby violates the Eighth Amendment 

to the U.S. Constitution. Kiles incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

This claim was not raised in state court. Kiles alleges he can overcome any 

default of this claim by showing cause and prejudice, including because of the 

ineffective assistance of appellate and state post-conviction counsel. See Martinez, 

566 U.S. at 9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687–88; but see 

Davila, 137 S. Ct. at 2058. Appellate and post-conviction counsel’s performance 

fell below the standards of minimally competent capital attorneys and prejudiced 

Kiles; alternatively, any procedural bar is neither adequate nor independent, and 

imposing default would be a miscarriage of justice.205 As this claim has not been 

 

205 Procedural default and other bars to this claim are themselves a violation of 

international law in a capital case. See Germany v. United States, 2001 I.C.J. 466 

(2001); Mexico v. United States, 2004 I.C.J. 12 (2004); IACHR, Report No. 78/15, 

Case 12.831. Merits (Publication). Kevin Cooper. United States. Oct. 28, 2015, at 

¶ 125. AEDPA and the doctrines of exhaustion and procedural default restrict 

safeguards that ensure Kiles a full and effective review of his trial and sentence, 

bringing the United States in violation of its obligations under the International 

Covenant on Civil and Political Rights [“ICCPR”], adopted Dec. 19, 1966, 999 

U.N.T.S. 171 (entered into force Mar. 23, 1976). Under Article 6, “Every human 

being has the inherent right to life. This right shall be protected by law. No one shall 

be arbitrarily deprived of his life.” Per the Safeguards Guaranteeing Protections of 

the Rights of those Facing the Death Penalty, the United Nations council clarified: 

“Capital punishment may only be carried out . . . after legal process which gives all 

possible safeguards to ensure a fair trial[.]” E.S.C. Res. 1948/50, U.N. ESCOR, 

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adjudicated on the merits, the limitations on relief imposed by 28 U.S.C. § 2254(d) 

do not apply to this Court’s review, and the Court may consider the merits of the 

claim de novo. 

First, Kiles’s prolonged stay on death row violates his basic human rights as 

guaranteed under international law. Kiles was first sentenced to death in 1990 (see 

ROA 174 at 3–5); he has remained in prison since that time and has been on death 

row for approximately twenty years (see ROA 345 at 1; ROA 924 at 3–4). The 

Inter-American human-rights system has previously found that keeping those 

sentenced to death on death row for a significant amount of time amounts to a denial 

of an individual’s human rights. In Hilaire, Constantine and Benjamin et al. v. 

Trinidad and Tobago, Judgment of June 21, 2002. (Ser. C) No. 94, ¶ 170, the InterAmerican Court of Human Rights found that the harsh conditions on death row over 

extended periods “impinge[d] on the [prisoners’] physical and psychological 

integrity and therefore constitute[d] cruel, inhuman and degrading treatment.” The 

European Court of Human Rights has held similarly, finding that “the 

foreknowledge of death at the hands of the State must inevitably give rise to intense 

psychological suffering.” Detaining prisoners on death row for extended periods 

thus violates Article 3 of the European Charter of Human Rights, “which prohibits 

torture and inhumane or degrading treatment or punishment.” Al-Saadoon and 

Mufdhi v. United Kingdom, App. No. 61498/08, Eur. Ct. H.R., ¶ 137 (Apr. 10, 

2010). 

Other nations that retain the death penalty have limited the time a prisoner 

can remain on death row before such detention violates a prisoner’s human rights. 

In Uganda, for example, it is three years on death row after the sentence is finalized; 

 

Supp. No. 1, at 33, U.N. Doc. E/1984/92, 5 (1984). Additionally, “‘arbitrariness’ is 

not to be equated with ‘against the law’, but must be interpreted more broadly to 

include elements of inappropriateness, injustice and lack of predictability.” U.N. 

Doc. CCPR/C/39/D/305/1988, Hugo van Alphen v. the Netherlands, adopted 23 

July 1990. 

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in Zimbabwe, it is four and one-half years. See Supreme Court of Uganda in 

Attorney General v. Susan Kigula and 417 others (Constitutional Appeal No. 3 of 

2006), 2009 (holding that it is unconstitutional to execute a prisoner who has spent 

over three years on death row after his sentence is final); Judgment of the Supreme 

Court of Zimbabwe of June 24, 1993 in Catholic Commissioner for Justice and 

Peace in Zimbabwe v. Attorney General (4) SA 239 (ZS). Kiles has been either on 

death row or facing capital charges for nearly 30 years, a clear violation of his 

human rights as protected by international law. 

Second, the death penalty as carried out in Arizona is a per se violation of 

international law norms. Subjecting Kiles to death by lethal injection or lethal gas 

is nonconsensual human experimentation and a grave violation of the customary 

international law norms as originally set out in the Nuremberg Code.206 See, e.g., 

Ben Crair, Lethal Entanglements, The New Republic (May 20, 2015), https:// 

newrepublic.com/article/121845/lethal-injection-has-become-testing-ground-toxic 

-drugs (reporting that Arizona executed death-row prisoner with an illegal drug). 

The Commentary to the Geneva Convention Relative to the Protection of Civilian 

Persons in Time of War makes explicit that medical experimentation must be 

consensual, and “[p]rotected persons must not in any circumstances be used as 

‘guinea pigs’ for medical experiments.” Commentary on the Geneva Conventions 

of 12 August 1949: IV Geneva Convention Relative to the Protection of Civilian 

Persons in Time of War 224 (Oscar Uhler and Henri Coursier eds., 1958). Under 

United States law, “protected persons” include those in vulnerable positions, such 

as prisoners. Cf. 45 C.F.R. § 46.302; 43 Fed. Reg. 53652 (Nov. 16, 1978). 

Nonconsensual human experimentation is prohibited by a wide range of 

treaties and agreements, as well as by customary international law. See generally

 

206 In Arizona, death sentences are inflicted by lethal injection. See A.R.S. Const. 

art. 22 § 22. Because, however, Kiles’s crime predated the adoption of that 

constitutional provision, Kiles will have the choice between lethal injection and 

lethal gas. See id.

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Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009). Article 7 of the ICCPR reads, “No 

one shall be subjected to torture or to cruel, inhuman or degrading treatment or 

punishment. In particular, no one shall be subjected without his free consent to 

medical or scientific experimentation.” 999 U.N.T.S. 171.207 Arizona is currently 

under a stipulated agreement to not utilize a specific lethal-injection method in 

executions. See Order for Dismissal of Claim One, First Amendment Coal. of Ariz. 

v. Ryan, No. 2:14-CV-01447-NVW (D. Ariz. Dec. 22, 2016), ECF No. 155; Order 

for Dismissal of Claims Six and Seven, First Amendment Coal. of Ariz. v. Ryan, 

No. 2:14-CV-01447-NVW (D. Ariz. June 22, 2017), ECF No. 187. However, 

nothing is preventing the State from moving forward under a new, untested 

execution protocol. This puts Kiles at risk of being subject not only to 

nonconsensual human experimentation, but also to torture, should the experimental 

method not proceed as the State intends. See Filártiga v. Peña-Irala, 630 F.2d 876, 

884 (2d Cir. 1980) (“[W]e conclude that official torture is now prohibited by the 

law of nations. The prohibition is clear and unambiguous.”). 

As early as 1900, the Supreme Court recognized that “[i]nternational law is 

part of our law, and must be ascertained and administered by the courts of justice 

of appropriate jurisdiction, as often as questions of right depending upon it are duly 

presented for their determination.” The Paquete Habana, 175 U.S. 677, 700 (1900). 

International legal norms have binding effect where it is “accepted and recognized 

by the international community of states as a whole as a norm from which no 

derogation is permitted and which can be modified only by a subsequent norm of 

general international law having the same character.” Siderman de Blake v. 

Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992). Pursuant to binding 

international law norms, (1) the constraints imposed by AEDPA on habeas 

 

207 The treaty makes clear that this right is non-derogable; even those who have 

been convicted of crimes may not be stripped of this right and involuntarily 

experimented upon by the State. 

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proceedings, see Section VI, supra, (2) the prolonged period of time a person 

spends on death row, and (3) the experimental and nonconsensual nature of 

executions violate basic human rights. Accordingly, the death penalty, as applied 

in Arizona, violates the Eighth and Fourteenth Amendments to the U.S. 

Constitution. 

Further, the Supreme Court has explained that the Eighth Amendment’s 

prohibition on cruel and unusual punishments takes into account “the evolving 

standards of decency” as reflected, in part, by international legal norms. Simmons, 

543 U.S. at 560–61; id. at 575 (“[A]t least from the time of the Court’s decision in 

Trop [356 U.S. at 86], the Court has referred to the laws of other countries and to 

international authorities as instructive for its interpretation of the Eighth 

Amendment’s prohibition of ‘cruel and unusual punishments.’”). While the 

international community has largely evolved away from capital punishment, 

Arizona has remained committed to this irrevocable sanction—and has become an 

outlier in a world that regards the death penalty as a violation of fundamental human 

rights. Amnesty International, Global Report: Death Sentences and Executions 

2017 5 (Apr. 2018), https://www.amnesty.org/download/Documents/ACT 

5079552018ENGLISH.PDF (reporting that by the end of 2017, “106 countries had 

abolished the death penalty in law for all crimes and 142 countries had abolished 

the death penalty in law or practice,” while “[o]nly an isolated minority of countries 

continue to resort to executions”). 

 Because the U.S. Constitution specifies that states are bound by international 

treaties, see U.S. Const. art. VI, cl. 2, and because the constitutionality of Arizona’s 

death penalty must be measured against the “evolving standards of decency that 

mark the progress of a maturing society,” Trop, 356 U.S. at 101, Kiles’s sentence 

is unconstitutional. He is entitled to relief. 

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Claim Thirty-Eight 

Kiles will be unable to receive a fair clemency process in Arizona. 

Kiles will be denied a fair clemency process, in violation of the Eighth and 

Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

reference all facts, allegations, and arguments made elsewhere in this Petition. 

Kiles has not yet presented this claim to the state courts, as his opportunity 

to seek executive clemency has not yet become ripe. He presents this claim now in 

order to avoid difficulties with raising this claim in future habeas proceedings. See 

Stewart v. Martinez-Villareal, 523 U.S. 637, 643–46 (1998). 

Under Arizona law, Kiles has the right to seek executive clemency before 

execution. See Ariz. Const. art. V, § 5; A.R.S. §§ 31-401–31-403 (2016). Clemency 

is, in effect, part of the constitutional scheme that ensures the reliability of criminal 

convictions and the propriety of sentences. See Herrera v. Collins, 506 U.S. 390, 

415 (1993). Accordingly, Kiles has a due-process liberty interest in the impartiality 

of the system by which clemency may be afforded to him. See generally Mathews 

v. Eldridge, 424 U.S. 319 (1976). 

Contrary to the dictates of due process, Kiles’s clemency proceedings will 

not be impartial. Arizona’s Board of Executive Clemency (“the Board”) consists of 

five members appointed by the Governor, who also designates the Board’s 

chairman. A.R.S. § 31-401(A), (F). The Governor can remove Board members for 

cause. Id. § 31-401(E). Pursuant to statute, the Attorney General’s Office, which 

advocated for Kiles’s death at trial, on appeal, and in state post-conviction 

proceedings, is involved with training Board members regarding their duties. Id. 

§ 31-401(C). On information and belief, Kiles asserts that both the selection process 

for members of the Board and the conflicting roles of the Attorney General’s 

Office—as his litigation adversary and as the office that trains the arbiters of 

clemency—will work to deprive him of a fair clemency proceeding. See Concrete 

Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 

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602, 617–18 (1993) (declaring that due process demands a neutral arbiter). Without 

judicial review of the bias inherent in the clemency process, Kiles will not have an 

opportunity to vindicate his right to a fair and impartial clemency proceeding. For 

these reasons, Arizona’s clemency procedures do not comport with the procedural 

due-process protections guaranteed to Kiles by the Eighth and Fourteenth 

Amendments to the U.S. Constitution, and he is entitled to relief. 

Claim Thirty-Nine 

Kiles’s convictions and sentences must be vacated because of the 

cumulative prejudicial effect of all of the errors in this case. 

The cumulative prejudice of the constitutional errors in Kiles’s case demands 

that his convictions and sentences be vacated under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments to the U.S. Constitution. Kiles incorporates by specific 

reference all facts, allegations, and arguments made elsewhere in this Petition. He 

also re-urges and incorporates by specific reference all objections, arguments, and 

claims of error made at trial, on appeal, and during post-conviction proceedings. 

Kiles presented this claim below. (See ROA 1189 at 23, 25, 61; PFR2 Dkt. 1 

at 23, 25, 61.) If the state court is deemed to have adjudicated this claim on the 

merits, the denial of this claim (1) was contrary to, or involved an unreasonable 

application of, clearly established federal law, and (2) was based on an 

unreasonable determination of the facts. 28 U.S.C. § 2254(d). Should this Court 

consider this claim defaulted, Kiles alleges he can overcome any default of this 

claim by showing cause and prejudice, including because of the ineffective 

assistance of appellate and state post-conviction counsel. See Martinez, 566 U.S. at 

9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687–88; but see Davila, 137 

S. Ct. at 2058. Alternatively, any procedural bar is neither adequate nor 

independent, and imposing default would be a miscarriage of justice. If this claim 

was not adjudicated on the merits below, the limitations on relief imposed by 28 

U.S.C. § 2254(d) do not apply to this Court’s review, and the Court may consider 

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the merits of the claim de novo. 

The combination of errors in this case, discussed in the preceding claims, 

deprived Kiles of such rights as his rights to a fair trial, trial by impartial jury, equal 

protection, due process, effective assistance of counsel, freedom from cruel and 

unusual punishment, presentation of a complete defense, confrontation, a reliable 

determination at both the guilt and penalty phases, and fundamental fairness. Even 

if the errors are deemed harmless when viewed individually, their cumulative effect 

substantially prejudiced Kiles and undermined the fairness and reliability of his 

proceedings.  

Even in cases where no single trial error examined on its own is sufficiently 

prejudicial to warrant reversal, the cumulative effect of multiple errors may still 

prejudice a defendant. See, e.g., Parle v. Runnels, 505 F.3d 922, 934 (9th Cir. 2007) 

(affirming grant of habeas relief based on the cumulative prejudicial effect of 

multiple errors); Alcala v. Woodford, 334 F.3d 862, 894–95 (9th Cir. 2003) (same); 

Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002) (“[T]he ‘cumulative effect of 

two or more individually harmless errors has the potential to prejudice a defendant 

to the same extent as a single reversible error.’” (quoting United States v. Rivera, 

900 F.2d 1462, 1469 (10th Cir. 1990))). When evaluating cumulative error, while 

only guilt-phase errors are relevant to Kiles’s convictions, “all errors are relevant 

to the sentence.” Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003); see also 

Satterwhite v. Texas, 486 U.S. 249, 261 (1988) (Marshall, J., concurring). 

In this case, as a result of the cumulative effect of the errors in the guilt and 

penalty phases, Kiles’s convictions and sentences were unlawfully and 

unconstitutionally imposed. The aggregate harm of these constitutional violations 

warrants granting this petition without any determination of whether these 

violations substantially affected or influenced the jury’s verdict. See Brecht, 507 

U.S. at 638 n.9. Further, these constitutional violations so infected the integrity of 

the proceedings that the errors cannot be deemed harmless, and they did in fact have 

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a substantial and injurious effect on the guilt and penalty judgments. Considering 

all the errors above, this Court should conclude that Kiles was denied fair and 

reliable proceedings and grant him habeas relief. 

PRAYER FOR RELIEF 

WHEREFORE, Kiles respectfully prays this Court to do the following: 

1. Order that Kiles be granted leave to conduct discovery pursuant to 

Rule 6 of the Rules Governing Section 2254 Cases and permit him to use the 

processes of discovery set forth in Federal Rules of Civil Procedure 26 through 37, 

to the extent necessary to fully develop and identify the facts supporting his Petition 

and any defenses thereto raised by Respondents’ answer; 

2. Order that upon completion of discovery, Kiles be granted leave to 

amend his Petition to include any additional claims or allegations not presently 

known to him or his counsel, which are identified or uncovered in the course of 

discovery, and that Kiles be granted leave to expand the record pursuant to Rule 7 

of the Rules Governing Section 2254 Cases to include additional materials related 

to the Petition; 

3. Grant an evidentiary hearing pursuant to Rule 8 of the Rules 

Governing Section 2254 Cases, at which proof may be offered concerning the 

allegations set forth in this Petition; 

4. Issue a writ of habeas corpus to have Kiles brought before this Court, 

to the end that he may be discharged from his unconstitutional confinement and 

restraint; 

5. In the alternative to the relief requested in Paragraph 4, if this Court 

should deny the relief as requested in Paragraph 4, issue a writ of habeas corpus to 

have Kiles brought before this Court to the end that he may be relieved of his 

unconstitutional sentences; and 

6. Grant such other relief as may be appropriate and dispose of the matter 

as law and justice require. 

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Respectfully submitted this 26th day of September, 2018. 

 

Jon M. Sands 

Federal Public Defender 

District of Arizona 

Mridula S. Raman 

Sara Chimene-Weiss 

By s/Mridula S. Raman 

Counsel for Petitioner 

 

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Certificate of Service 

I hereby certify that on September 26, 2018, I electronically filed the 

foregoing Petition for Writ of Habeas Corpus with the Clerk’s Office by using the 

CM/ECF system. I certify that all participants in the case are registered CM/ECF 

users and that service will be accomplished by the CM/ECF system. 

s/ Catherine Jacobs 

Assistant Paralegal 

Capital Habeas Unit 

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