NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THEODORE WASHINGTON, 

Petitioner-Appellant, 

 v. 

CHARLES L. RYAN, Warden, 

Respondent-Appellee.

No. 05-99009 

D.C. No. CV-95-02460-JAT 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Submitted September 26, 2018**

Pasadena, California

Before: GOULD, CALLAHAN, and N.R. SMITH, Circuit Judges.

Arizona state prisoner Theodore Washington was sentenced to death in 1987 

for the first degree murder of Sterleen Hill. Washington appeals the district court’s 

denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. On appeal, 

Washington raises three certified issues and four uncertified issues. In a 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

concurrently filed published opinion, we address Washington’s certified claim for 

ineffective assistance of counsel, and grant relief on that issue. We address 

Washington’s remaining claims here, and on all these claims we affirm the district 

court. 

1. Although Washington filed his habeas corpus petition before the effective 

date of the Antiterrorism and Effective Death Penalty Act of 1996, his appeal is 

subject to the certificate of appealability (COA) requirements of 28 U.S.C. § 2253. 

Slack v. McDaniel, 529 U.S. 473, 478 (2000). We construe uncertified issues 

raised on appeal as a motion to expand the COA. Ninth Cir. R. 22-1(d), (e);

Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012). We conclude that 

reasonable jurists could disagree as to the propriety of the district court’s resolution 

of the uncertified issues and therefore expand the COA and address them on the 

merits. 

2. The trial court’s failure to sever Washington’s case from Fred Robinson’s 

did not result in prejudice so fundamental as to deny his due process right to a fair 

trial. We review denial of a severance motion for abuse of discretion. See, e.g. 

United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir. 1992). The primary inquiry in 

determining whether a failure to sever was prejudicial to the defendant is whether 

the evidence is easily compartmentalized. United States v. Patterson, 819 F.2d 

1495, 1501 (9th Cir. 1987). Here, the evidence of Fred Robinson’s prior 
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abductions of Susan Hill was reasonably easy to separate from the evidence 

pertaining to the murder of Sterleen Hill. Washington’s lawyer established that 

Washington was not present for the prior abductions, and both the prosecution and 

defense noted that Washington was not involved with the prior abductions in their 

closing arguments. Finally, the trial court offered limiting instructions, which the 

jurors are presumed to have followed. See Cheney v. Washington, 614 F.3d 987, 

997 (9th Cir. 2010). Washington therefore cannot show prejudice. There was no 

abuse of discretion in denying severance.

3. The trial court did not err in applying the statutory cruel, heinous, and 

depraved aggravating factor under Ariz. Rev. Stat. Ann. § 13-751(F)(6). Because 

the statute is written in the disjunctive, the trial court only needed to find one of the 

elements proven beyond a reasonable doubt to apply the aggravator. See State v. 

Carlson, 48 P.3d 1180, 1191 (Ariz. 2002). The trial court’s finding that the killing 

satisfied the cruelty prong, which was affirmed by the Arizona Supreme Court, is 

amply supported by substantial evidence in the record. Sterleen Hill was forced to 

listen helplessly as her husband was shot and then wait as the shotgun was 

reloaded, knowing that she would be next. The trial court’s conclusion that the 

suffering was reasonably foreseeable is also supported by the evidence. 

Washington had been told before the invasion that the “real purpose of the trip to 

Yuma was to take out a drug dealer and get his dope and his money.” And he was, 
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at a minimum, present while Sterleen Hill was bound and forced to lie on the floor 

in preparation for the execution-style shootings of her and her husband. The trial 

court’s application of the cruelty aggravator was not arbitrary and capricious and 

did not violate Washington’s due process rights. 

4. There is sufficient evidence to support Washington’s conviction. When 

assessing whether sufficient evidence exists to support a conviction, we determine 

“whether, after viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact” could have made the finding beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Under this 

standard, the evidence shows that Robinson, Mathers, and Washington discussed 

going to Yuma on the day of the crimes. The evidence further shows that 

Washington was seen in Robinson’s car with Mathers and Robinson leaving 

Banning on the night of the crime wearing a red bandana and a tan trench coat. 

Moreover, Ralph Hill’s description of one of his attackers as a young black man 

wearing a red bandana with a moustache and long sideburns matched 

Washington’s appearance that night. Ralph knew Robinson, who is also black, and 

testified the man he saw was not Robinson. The jury could reasonably conclude 

that Washington was one of the culpable intruders. Also, the shotgun used to shoot 

the Hills and a tan trench coat containing a slip of paper with Eric Robinson’s 

name on it were found in a nearby field. A few hours after the murder, 
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Washington called his girlfriend from Yuma, telling her he was stranded. From all

this evidence, a rational trier of fact could have found beyond a reasonable doubt 

that Washington participated in the crime.

5. We are also not persuaded that Washington’s counsel on direct appeal was 

constitutionally ineffective for failing to raise a sufficiency of the evidence 

challenge. To establish ineffective assistance of counsel, Washington must show 

that his appellate counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms at the time and that the 

ineffective assistance resulted in prejudice. Correll v. Ryan, 539 F.3d 938, 942 

(9th Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

Clarke testified that he made a tactical decision to focus on other issues on appeal 

and there is nothing to suggest this decision was unreasonable. Even if Clarke 

erred by failing to raise the issue on direct review, the evidence adduced at trial 

was sufficient to support Washington’s conviction. As a result, Washington cannot 

show a reasonable probability of a different outcome but for Clarke’s alleged error;

without prejudice, this claim fails. 

6. The trial court did not unconstitutionally apply the “pecuniary gain”

aggravator. The pecuniary gain aggravator applies when “the defendant committed 

the offense as consideration for the receipt, or in expectation of the receipt, of 

anything of pecuniary value.” Ariz. Rev. Stat. Ann. § 13-751(F)(5). The 
6 

expectation of pecuniary gain must have been “a motive, cause, or impetus for the 

murder and not merely the result of the murder.” State v. Hyde, 921 P.2d 655, 683 

(Ariz. 1996). The evidence shows that Washington was advised that the real 

purpose of the trip to Yuma was to “knock off a dope dealer” and “take his coke 

and take the cash.” In addition, Washington forced his way into the Hills’ home, 

repeatedly demanded drugs or money from the couple, and searched for and took

items of value from the Hills’ home. The application of the pecuniary gain factor 

is supported by evidence in the record and was not “so arbitrary or capricious as to 

constitute an independent due process or Eighth Amendment violation.” Lewis v. 

Jeffers, 497 U.S. 764, 780 (1990).

7. Washington’s death sentence is not constitutionally inadequate under 

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 

(1987). For a death sentence to be constitutional under the Eighth Amendment, the 

state must show that (1) the defendant was a major participant in the felony 

committed, and (2) the crime was committed with reckless indifference to human 

life. See Tison, 481 U.S. at 158. The evidence supports the trial court’s conclusion 

that Washington was a major participant in the crime. Washington entered the 

Hills’ home and forced them into the master bedroom while demanding drugs and 

money. Ralph Hill saw Washington riffling through drawers before he was shot. 

And the gun used to shoot the Hills was recovered near the trench coat Washington 
7 

was seen wearing that day. The evidence likewise supports the trial court’s finding 

that the crime was committed with reckless disregard for human life. Washington 

and his partner entered the Hills’ home armed and forced the couple to lie face 

down while demanding drugs and money. Whether or not Washington pulled the 

trigger, he was present and failed to render aid to the Hills. See Dickens v. Ryan,

740 F.3d 1302, 1316 (9th Cir. 2014). Washington was a major participant in the 

tragic acts of that day. The Arizona court’s determination that Washington was 

eligible for the death sentence is therefore well supported by the evidence in the 

record.

8. The district court did not err in denying Washington’s motion to expand the 

record because Washington cannot show cause for his failure to develop the facts 

in the state PCR proceedings or that failure to admit the evidence resulted in a 

fundamental miscarriage of justice. See Keeney v. Tomayao-Reyes, 504 U.S. 1, 

11–12 (1992). 

9. In conclusion, on all the claims discussed in this memorandum disposition, 

we AFFIRM the district court and deny relief.