FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES, 

Petitioner-Appellant, No. 07-99022

v. D.C. No.

JEFF HENRY, of the IMSI,  CV-93-00155-S-EJL

Department of Corrections State of OPINION Idaho*

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

February 3, 2010—Seattle, Washington

Filed March 8, 2010

Before: Pamela Ann Rymer, Ronald M. Gould and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Rymer

*Jeff Henry is substituted for his predecessor, Arvon J. Arave, Department of Corrections State of Idaho. Fed. R. App. P. 43(c)(2). 

3511
COUNSEL

Oliver W. Loewy, Federal Defender Services of Idaho, Moscow, Idaho, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,

for the respondent-appellee.

OPINION

RYMER, Circuit Judge: 

An Idaho jury found Paul Ezra Rhoades guilty of the 1987

first degree murder, first degree kidnapping, and robbery of

Stacy Baldwin.1 The trial court sentenced him to death for

1Rhoades was separately convicted for the shooting deaths of Susan

Michelbacher and Nolan Haddon, both of whom were killed with the same

gun that killed Baldwin during the same three-week period in February

3518 RHOADES v. HENRY (Baldwin)
both the murder and the kidnapping, and to a fixed term of

life in prison for robbery. The Idaho Supreme Court upheld

his conviction, sentence, and denial of post-conviction relief,

State v. Rhoades (Baldwin), 820 P.2d 665 (Idaho 1991)

(Rhoades I), and the federal district court denied his petition

for a writ of habeas corpus. Rhoades appeals, and we affirm.

I

Rhoades had been loitering around convenience stores in

the Blackfoot and Idaho Falls area, including the Red Mini

Barn in Blackfoot. Stacy Baldwin worked at the Red Mini

Barn and began her night shift around 9:45 p.m. on February

27, 1987. Some time before 11:00 p.m., Carrie Baier and two

other girls rented videos at the Mini Barn from Stephanie

Cooper, Baldwin’s co-worker. Cooper’s shift ended at 11:00

p.m, which left Baldwin alone.

When Baier returned around midnight, she noticed a man

leave the store, get into a pickup truck (it turned out to be one

used by the Rhoades family), and drive recklessly toward her.

Baier saw a passenger next to the driver, but neither she nor

her friends could identify the driver or the passenger. Baier

went into the Mini Barn but could not find Baldwin, though

Baldwin’s coat was still there and her car was outside. The

last recorded transaction at the store was at 12:15 a.m. $249

was missing from the cash register. 

and March of 1987. He was sentenced to death on his convictions for first

degree murder, and first degree kidnapping, of Michelbacher, see State v.

Rhoades (Michelbacher), 822 P.2d 960 (Idaho 1991), and received two

indeterminate life sentences for the Haddon murder after entering a conditional guilty plea, see State v. Rhoades (Haddon), 809 P.2d 455 (Idaho

1991). Appeals from denial of federal habeas relief in both cases are also

before us; we resolve them in separate opinions. Rhoades v. Henry

(Michelbacher), No. 07-99023, slip op. (9th Cir. March 8, 2010); Rhoades

v. Henry (Haddon), No. 07-35808, slip op. (9th Cir. March 8, 2010). 

RHOADES v. HENRY (Baldwin) 3519
Rhoades and another male had coffee at Stan’s Bar and

Restaurant, near the Mini Barn, sometime between 1:30 a.m.

and 2:00 a.m. on February 28.

Baldwin’s body was found later that morning near some

garbage dumpsters on an isolated road leading to an archery

range. She had been shot three times. According to a pathologist, Baldwin died from a gunshot wound to the back and

chest, but may have lived for an hour or so after the fatal shot

was fired. 

On March 22 or 23, Rhoades’s mother reported her green

Ford LTD had been stolen. Rhoades was seen driving a similar looking LTD on March 22, and on March 24, truckers saw

the LTD parked on a highway median in Northern Nevada.

They also saw a person matching Rhoades’s description lean

out of the car, fumble with a dark brown item, and run off into

the sagebrush. A Nevada trooper responding to the scene

found a .38 caliber gun on the ground near the open door of

the car, and a holster about forty-five feet away. Ballistics

testing would show that this weapon had fired the bullets that

killed Baldwin.

Rhoades turned up about 11:00 in the morning of March 25

at a ranch a mile and a half from where the LTD was found.

Later that day, he got a ride from the ranch to Wells, Nevada,

where he was dropped off at the 4 Way Casino around 9:00

p.m. Nevada law enforcement officers arrested Rhoades while

he was playing blackjack. They handcuffed him, set him over

the trunk of the police car, and read him his Miranda rights.2

Meanwhile, Idaho authorities were alerted to a Rhoades

connection when the LTD was discovered. They had previously obtained a warrant for Rhoades’s arrest for burglary of

Lavaunda’s Lingerie, and arrived at the 4 Way Casino shortly

after Rhoades was arrested. As the Idaho officers — one of

2Miranda v. Arizona, 384 U.S. 436, 467-72 (1966). 

3520 RHOADES v. HENRY (Baldwin)
whom Rhoades knew from home — approached, Rhoades

said: “I did it.” Rhoades was advised of his Miranda rights by

an officer from Idaho, Victor Rodriguez, and searched by

another Idaho officer, Dennis Shaw. Rhoades had a digital

wrist watch in his pocket, which he claimed to have found in

a “barrow pit.” It was just like the one Baldwin was wearing

the night she was killed. 

During the booking process at the Wells Highway Patrol

Station, Shaw remarked something to the effect: “If I had

arrested you earlier, Stacy Baldwin may be alive today.”

Rhoades replied: “I did it.” Shaw then said, “The girl in

Blackfoot,” and Rhoades again replied, “I did it.”

3

Forensic analysis would show that footprints found in the

snow near Baldwin’s body were consistent with the size and

pattern of Rhoades’s boots, and that Rhoades’s hair was consistent with a hair on Baldwin’s blouse. Rhoades also admitted to a cellmate that he kidnapped Baldwin, took her to an

archery range intending to rape her but was unable to do so

because she was hysterical, and shot her twice in the back.

II

Based on this evidence, the jury found Rhoades guilty of

murder in the first degree, kidnapping in the first degree, and

robbery. The state court held an aggravation and mitigation

hearing, after which it sentenced Rhoades to death on the conviction for first degree murder and the conviction for first

degree kidnapping. Rhoades filed a direct appeal and sought

post-conviction relief, which the trial court denied after hold3Shaw actually referred to all three murders, along the lines: “If I had

arrested you earlier, three people would be alive” followed by “The girl

in Blackfoot, and the two people in Idaho Falls.” However, to avoid prejudice, the parties stipulated that at trial Shaw would refer only to Baldwin

and “the girl in Blackfoot.” For ease, we collapse the two “I did it” statements at the station into one, and refer to the two collectively as the second “I did it” statement. 

RHOADES v. HENRY (Baldwin) 3521
ing evidentiary hearings. Once that denial was appealed, the

Idaho Supreme Court consolidated both appeals in accord

with its procedure for capital cases. It affirmed Rhoades’s

convictions, death sentences, and denial of post-conviction

relief on September 12, 1991. The United States Supreme

Court declined to issue a writ of certiorari.

Rhoades filed a Statement of Issues in federal court on

April 29, 1993, and a Petition for Writ of Habeas Corpus on

November 30, 1993. The Antiterrorism and Effective Death

Penalty Act (AEDPA), which became effective April 24,

1996, is not applicable except to procedural requirements for

seeking review. Sims v. Brown, 425 F.3d 560, 562 (9th Cir.

2005).

As one would expect, there were several amendments to the

petition and numerous rulings by the district court.4 Among

decisions pertinent to this appeal, the district court denied

Rhoades’s request for an evidentiary hearing on claims that

the state withheld exculpatory evidence, that Rhoades’s

Miranda rights were violated, and that appellate counsel rendered ineffective assistance. Ultimately the district court

denied all of Rhoades’s claims, as well as his motion to alter

and amend the Memorandum Decision and Judgment pursuant to Federal Rule of Civil Procedure 59.

Rhoades has timely appealed those grounds on which he

received a certificate of appealability.

III

We review de novo the district court’s decision to grant or

4While federal proceedings were pending, Rhoades filed two successive

post-conviction petitions in state court November 4, 1996, which were

denied by the trial court. The Idaho Supreme Court dismissed appeals

from both judgments. State v. Rhoades, No. 29180/29212, slip op. (Idaho

Dec. 12, 2005). 

3522 RHOADES v. HENRY (Baldwin)
deny a petition for writ of habeas corpus. Martinez-Villareal

v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). We also review

de novo the district court’s decision to dismiss a habeas petition for procedural default or for failure to exhaust. Vang v.

Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003). Similarly,

“[i]neffective assistance of counsel claims are mixed questions of law and fact which we review de novo.” Beardslee v.

Woodford, 358 F.3d 560, 569 (9th Cir. 2004).

“To the extent it is necessary to review findings of fact

made in the district court, the clearly erroneous standard

applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.

2002). This clear error review is “significantly deferential,”

and our court “must accept the district court’s factual findings

absent a ‘definite and firm conviction that a mistake has been

committed.’ ” Id. (citation omitted). Further, “[a]lthough less

deference to state court factual findings is required under the

pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness

unless they are ‘not fairly supported by the record.’ ” Id. (citations omitted). 

“A district court denial of an evidentiary hearing is

reviewed for abuse of discretion.” Beardslee, 358 F.3d at 573.

IV

Rhoades argues that exclusion of testimony regarding

Keven Buchholz’s confessions to the Baldwin murder denied

him due process.5 Buchholz was arrested at his parents’ home

5Rhoades failed to pursue this claim in his first post-conviction petition,

therefore the Idaho Supreme Court treated it as waived. Rhoades v. State,

17 P.3d 243, 247 (Rhoades II) (Baldwin) (Idaho 2000). By the same token,

the state failed to assert procedural default in district court. We decline sua

sponte to consider this issue. 

Rhoades further argues that the court’s ruling was erroneous under the

Idaho Rules of Evidence. However, evidentiary rulings based on state law

cannot form an independent basis for habeas relief. Estelle v. McGuire,

502 U.S. 62, 67-68 (1991). 

RHOADES v. HENRY (Baldwin) 3523
on March 14, 1987, after his father called the police to report

a fight. At the jail, Buchholz, while quite drunk, told the officer on duty that evening, Larry Christian, that he had shot the

girl from the Mini Barn twice in the back. Christian reported

the conversation to his supervisor, then returned. Buchholz

repeated that he shot the girl from the Mini Barn twice in the

back, had shot several times around the body, and had emptied the gun. Rhoades tried, unsuccessfully, to subpoena

Buchholz for trial. He then sought to call Christian to testify

to what Buchholz told him. 

Buchholz recanted the confession once sober, explaining

that he was with his family the night of the murder. Family

members confirmed this. In addition, Buchholz’s fingerprints,

hair sample, and shoe prints were taken; none matched anything connected to the crime.6

 The police could not link Buchholz to the murder weapon, and determined that information

in his confession could have come from public sources or gossip in the community. 

The state moved to exclude Christian’s testimony. Rhoades

presented an offer of proof indicating that Christian would

testify that Buchholz told him he shot the girl twice in the

back; shot at her several times; stole a green pickup in Pocatello which he left at Fort Hall; and the gun was either a .38

caliber or a 9mm. The proffer also indicated that shell casings

from both sizes were found at the scene. The trial court precluded Christian from testifying because it found that Buchholz’s confession lacked sufficient corroboration to be

trustworthy, thus Christian’s testimony about what Buchholz

told him would be hearsay under Rule 804(b)(3) of the Idaho

Rules of Evidence.7

6Buchholz also took a polygraph examination, but that test is irrelevant

because polygraph results are inadmissible under Idaho law absent a stipulation. State v. Fain, 774 P.2d 252, 256-57 (Idaho 1989). 

7Under Idaho Rules of Evidence 804(b)(3), an unavailable declarant’s

statement against interest “tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the

statement.” 

3524 RHOADES v. HENRY (Baldwin)
Christian and Buchholz both testified at a post-conviction

evidentiary hearing. The evidence showed that Buchholz was

out of control at his parents’ home, his father called the

police, and he was arrested for battery and resisting arrest. He

was placed in a holding tank, and asked to talk to Christian.

Christian described Buchholz as “well out of it, as far as being

drunk,” crying, upset, fighting, and “trying to give him a reason to lock him up.” Christian also explained that it was generally known that a green Ford pickup was found near Fort

Hall, and the police knew that Stacy had been shot in the

back. Buchholz agreed that he was drunk, and had gotten into

a fight with his parents. Officer Love (whom he knew)

responded to his father’s call and took him to jail; Love ran

through a list of things they could book him for, to which

Buchhoz replied “You might as well book me for murder,

too.” Buchholz explained that he was under the influence,

upset with the officer and his parents, and had made the statement to get attention because he thought they were piling on

unfair charges. Buchholz also testified that he was at the hospital when Stacy’s body was brought in because his daughter

had appendicitis. 

[1] The district court concluded that Buchholz’s statement

lacked “persuasive assurances of trustworthiness” as he was

intoxicated when he confessed and recanted when he was

sober, his alibi checked out, and there was no other evidence

linking him to the crime. See Chambers v. Mississippi, 410

U.S. 284, 300-01 (1973). We agree. 

[2] Rhoades relies heavily on Chambers, where a third

party confessed on four separate occasions before recanting,

and the Court found that a hearsay rule could not be applied

to prohibit introduction of those confessions without offending due process. He points out that Buchholz also confessed

several times — once to the arresting officer and twice to

Christian. The circumstances are different, however, as Buchholz’s confessions occurred during a single, continuous tirade.

The fact that he said the same thing three times in one outRHOADES v. HENRY (Baldwin) 3525
burst does not make his otherwise untrustworthy statement

trustworthy. The circumstances surrounding the Buchholz

confession are likewise different from those in cases such as

Green v. Georgia, 442 U.S. 95 (1979), where the proffered

statement was reliable enough to have been used against

Green’s codefendant in a related trial; Rock v. Arkansas, 483

U.S. 44 (1987), where the Court held that a per se rule against

hypnotically-refreshed testimony ran afoul of due process

when, as was true there, it had the effect of excluding testimony that was supported by corroborating evidence; Crane v.

Kentucky, 476 U.S. 683 (1986), where the issue was voluntariness and credibility; Holmes v. South Carolina, 547 U.S. 319

(2006), where the Court rejected as arbitrary a rule that made

admissibility turn on the strength of only the prosecution’s

evidence; and Washington v. Texas, 388 U.S. 14 (1967),

which involved direct (rather than hearsay) testimony by principals, accomplices or accessories to the crime and where the

Court held that the evidence could not be excluded based on

a priori categories that presume an entire class of witnesses to

be unworthy of belief.8

[3] Rhoades also posits a different result were we to apply

the balancing test of Miller v. Stagner, 757 F.2d 988, 994-95

(9th Cir. 1985).9 Whether or not the test is applicable in the

circumstances of this case, applying it would not change the

8Rhoades’s reliance on our decisions in Thomas v. Hubbard, 273 F.3d

1164, 1177 (9th Cir. 2002) (as amended), and United States v. Crosby, 75

F.3d 1343, 1347 (9th Cir. 1996), is misplaced for the similar reason that

neither involved hearsay testimony. 

9As restated in Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003)

(nonnumerical alteration in original): 

In weighing the importance of evidence offered by a defendant

against the state’s interest in exclusion, the court should consider

[1] the probative value of the evidence on the central issue; [2]

its reliability; [3] whether it is capable of evaluation by the trier

of fact; [4] whether it is the sole evidence on the issue or merely

cumulative; and [5] whether it constitutes a major part of the

attempted defense. A court must also consider [6] the purpose of

the [evidentiary] rule; [7] its importance; [8] how well the rule

implements its purpose; and [9] how well the purpose applies to

the case at hand. The court must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence. 

3526 RHOADES v. HENRY (Baldwin)
outcome. Of course a confession may have great probative

value, but it also may not, and if not — as here — it may be

excluded. Holmes, 547 U.S. at 326. With nothing to back up

Buchholz’s confession, it was unreliable. The jury would have

had no opportunity to evaluate Buchholz’s credibility and

demeanor; Christian’s testimony would have been the only

testimony on the issue. Christian’s recitation could not realistically have been a major part of Rhoades’s defense given the

circumstances in which Buchholz’s statements were made, his

recantation and alibi, and the dearth of independent evidence

tying Buchholz to the crime. Further, an evidentiary rule such

as Idaho Rule of Evidence 804(b)(3) serves the important role

of excluding testimony that lacks significant indicia of reliability. See United States v. Fowlie, 24 F.3d 1059, 1069 (9th

Cir. 1994) (holding that application of Federal Rule of Evidence 804(b)(3), which is virtually identical to the Idaho

Rule, does not violate due process). Exclusion of Christian’s

testimony advances this purpose.

[4] Accordingly, we conclude that Rhoades’s due process

rights were not violated by precluding Christian from testifying about what Buchholz told him.

V

[5] It follows that Rhoades cannot prevail on the related

argument that his counsel was ineffective for failing to conduct an adequate investigation into Buchholz’s confession, or

failing to argue on appeal that due process mandated its

admission. Simply put, neither would have gone anywhere.

See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(holding that petitioner must show prejudice as well as deficient performance). Rhoades suggests that counsel could have

discovered there were shell casings on the ground consistent

with Buchholz’s confession, and that details related by Buchholz were accurate but not yet public, for example, that Baldwin had been shot twice in the back. However, whether there

were shell casings on the ground, or Buchholz correctly

RHOADES v. HENRY (Baldwin) 3527
described some elements of the crime, doesn’t matter without

evidence linking Buchholz to Baldwin, to the scene, or to the

murder weapon. Rhoades also suggests that counsel would

have found out the lie detector results, but whether Buchholz

did (or did not) pass the lie detector test would have made no

difference because it wasn’t admissible, anyway. And given

no due process violation, as we have explained, there is no

reason to suppose that state appellate counsel making the

same arguments that Rhoades now makes would have been

successful in changing the outcome. 

[6] Rhoades offers no support for his further argument that

the district court should have held an evidentiary hearing on

the issue. We review denial of an evidentiary hearing for

abuse of discretion, Beardslee v. Woodford, 358 F.3d 560,

573 (9th Cir. 2004), and see none.

VI

[7] Rhoades asserts three supposed Brady10 violations:

First, the state’s failure to disclose that he invoked his right

to silence en route from the 4 Way Casino to the Wells Highway Patrol Station, which he maintains had the effect of making it appear that the second “I did it” statement waived his

right. Second, the prosecution’s failure to disclose all the

police reports regarding Buchholz’s confession, which would

have shown that he confessed multiple times, thereby making

testimony about it admissible. And third, the state’s failure to

disclose a recorded statement of Loretta Wallace (one of the

three girls near the Mini Barn at midnight) whose description

of the pickup truck more closely matched the one Buchholz

10Brady v. Maryland, 373 U.S. 83, 87 (1963) (imposing duty on the

prosecution to disclose material evidence favorable to an accused). Three

requirements must be met to prove a Brady violation: “The evidence at

issue must be favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must have been suppressed by the

State, either willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 

3528 RHOADES v. HENRY (Baldwin)
claimed to have driven than the one that Rhoades sometimes

drove. He also maintains that the district court should not

have denied an evidentiary hearing on the first two issues.

A

The Idaho Supreme Court implicitly found that Rhoades

impliedly waived his right to silence by choosing to say “I did

it” in response to Shaw’s comment at the station that the victim would be alive had Rhoades been arrested earlier.

Rhoades submits this couldn’t have happened if he, and the

Idaho courts, had been aware of a report by Detective Shaw

reflecting that Rhoades invoked his right to silence on the way

to the station. He maintains that the report only came to light

in connection with Shaw’s deposition taken in 1996. 

In the report, Shaw states:

On the way to the police station I continued to talk

with [Rhoades]. He was very uncomfortable as he

was so large and the car did not give him much

room. I told him I was disappointed in him and he

had lied to me about the burglary. I had tried to

believe him and give him a chance but he had lied

and conned me. I said we need to talk about it now

so that you can get it off your chest. He said, “Aw

bullshit, I don’t want to talk about it.[ ] Get these

fuckin cuffs off me.”

At his deposition, Shaw explained that he was talking about

the Lavaunda’s Lingerie burglary in the car because he

wanted to start chronologically and that’s where his warrant

was. Shaw assumed that when Rhoades said he didn’t want to

talk about it, it was because Rhoades was cramped. Once

inside the station, Shaw removed the handcuffs and proceeded

to talk. 

RHOADES v. HENRY (Baldwin) 3529
Rhoades contrasts this account with Shaw’s testimony at

the July 15, 1987 preliminary hearing, where he said that the

only significant thing that happened en route from the casino

to the station was that Rhoades, who is a large man, was

uncomfortable and complained about being handcuffed in the

car. Rhoades also points out that it was several months before

the second “I did it” statement was put into any report, and

then not by Shaw. From this, Rhoades postulates that Shaw

viewed the interrogation in the car and at the station as a single, continuous event, and forgot all of it.11

The district court found that Rhoades failed to show that his

trial counsel, David Parmenter, was unaware of the information in the report. Parmenter testified at his deposition that he

believed he had seen the Shaw report and was familiar with

some of the information in it, though he later submitted a declaration indicating that he did not recall that the state ever provided the report. Rhoades challenges this finding only on the

footing that it should not have been made without an evidentiary hearing, but the district court had discretion to rule on the

record as it was given no evidence that counsel did not have

information that was in the report — whether or not he had

the report itself. See Swan v. Peterson, 6 F.3d 1373, 1384 (9th

Cir. 1993) (holding that a petitioner is “entitled to an evidentiary hearing only if [he] alleged facts that, if proved, would

entitle [him] to relief.”). 

[8] In any event, as the district court further observed,

Rhoades was the one who said “I don’t want to talk about it.”

11In passing, Rhoades suggests he diligently pursued facts showing that

he had invoked his right to silence, a point he does not develop and we

accordingly do not address; and he urges us not to ignore the fact that the

prosecution failed to mention an en route invocation in the Michelbacher

and Haddon cases as well. As the Idaho courts treated these cases separately, so do we. But if we were to move past the record in this case, the

prosecutor in fact called Rhoades’s counsel’s attention to the Shaw report

at a discovery conference in the Haddon case. See Rhoades (Haddon), slip

op. at 3608-09. 

3530 RHOADES v. HENRY (Baldwin)
In other words, Rhoades possessed the facts that he now

claims were concealed — unless, as he also claims, he was

too far out of it to be aware of what he had said. As to that,

there is no question Rhoades appeared high, under the influence of drugs or alcohol, when he was arrested. Despite this,

the Idaho Supreme Court determined that Rhoades “had sufficient capacity to understand what was going on around him.”

Rhoades I (Baldwin), 820 P.2d at 676. Among other things,

this was based on an exchange between Rhoades and Shaw

during which Shaw, having found three bills totaling $111 on

Rhoades and deciding to test Rhoades’s alertness, pulled the

money out and said “three dollars.” Rhoades turned around

and said: “There better be a hundred eleven dollars there.” It

was just after this, in the car, that Shaw brought up the

Lavaunda’s Lingerie burglary and Rhoades told Shaw “I don’t

want to talk about it” and to get the handcuffs off. Absent a

showing that the supreme court’s determination is incorrect,

we accept its finding that Rhoades was aware of what was

going on. Thus, Rhoades was aware that he was uncomfortable handcuffed in the car, and when Shaw brought up the

burglary, he told Shaw he didn’t want to talk about it and to

take the handcuffs off. These core facts were enough for

Rhoades and his counsel to take advantage of whatever exculpatory value they may have had, either by pursuing records,

or raising Miranda. 

[9] There is no Brady violation when a defendant possessed the information that he claims was withheld. See Raley

v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (so holding when

petitioner possessed “the salient facts”). Rhoades made the

statement he claims was suppressed, and failed to show that

his counsel did not have the salient information. Consequently, there was no Brady violation. 

B

Again focusing on Buchholz’s confession, Rhoades complains that the prosecutor failed to disclose that Buchholz conRHOADES v. HENRY (Baldwin) 3531
fessed three times, not just once, and to officers working for

different agencies. Blackfoot Chief of Police J. J. Love, who

arrested Buchholz, made a report indicating that Buchholz

told him he “was the one who killed the girl at the Mini Barn.

Why don’t you pin it on me. I did it.” Christian, the officer

who talked to Buchholz at the jail, filled out a report indicating that Buchholz told him he had fired several shots and hit

the girl from the Mini Barn twice in the back with a .38 or a

9mm. Detective Newbold, of the Blackfoot Police Department, to whom Christian told what had happened, prepared a

report that mentions Christian’s written report and summarizes it in detail. The Newbold report was turned over, though

neither the Love nor Christian reports was. 

[10] As his trial proffer reveals, Rhoades undisputedly

knew that Buchholz confessed to Christian that he shot the

girl from the Mini Barn. Counsel conceded as much in his

post-conviction testimony. His trial proffer also refers to

Christian’s “more detailed report,” so he knew about it as

well. All Rhoades apparently didn’t have at trial was Officer

Love’s report, but it added no detail not apparent from the

Newbold summary or available from Christian. Without question, Rhoades had all the “salient facts regarding the existence

of the [evidence] that he claims [was] withheld.” Raley, 444

F.3d at 804. Accordingly, the information was not suppressed.

As we have explained, that Buchholz said more or less the

same thing to Love on the way to jail as he said to Christian

at the jail, all while quite inebriated, isn’t material. The

defense was armed with a confession, who confessed, to

whom and about what. In addition, the trial court in postconviction proceedings found that Buchholz was credible in

his account of why he confessed and why he recanted, and

that Rhoades was not prejudiced by non-disclosure of any

material related to the confession. The Idaho Supreme Court

likewise did not believe the outcome of trial would have been

different had the defense received the other police reports.

Both determinations are well-supported in the record.

3532 RHOADES v. HENRY (Baldwin)
The district court did not abuse its discretion in ruling without an evidentiary hearing. Rhoades fails to suggest why the

state post-conviction hearing was inadequate; or why the

Idaho Supreme Court’s determination that the undisclosed

reports were sufficiently summarized in Newbold’s report to

put counsel on alert, and that the reports were not material,

was incorrect.

C

[11] Rhoades further claims that the state failed to turn

over a recorded statement by Loretta Wallace during which,

while in and out of hypnosis, she described a man leaving the

Mini Barn whose characteristics did not match Rhoades. It

was part of a videotape of the “Baldwin Crime Scene” that

had a ten minute gap before the Wallace statement. The claim

fails because the videotape was, in fact, disclosed. Counsel

just didn’t find Wallace’s statement. Rhoades points to no

authority requiring the prosecution to single out a particular

segment of a videotape, and we decline to impose one.12

D

[12] Finally, the district court found that, considering the

suppressed evidence collectively, there was no prejudice. See

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (instructing courts

to determine whether, had evidence been disclosed, there is a

reasonable probability of a different outcome by reviewing

impact of withheld evidence collectively, rather than item by

item). As the court pointed out, evidence at trial showed that

the murder weapon was found just outside the LTD that

Rhoades was driving and bullets like those used in the murder

12See United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) (noting “that ‘there is no authority for the proposition that the government’s

Brady obligations require it to point the defense to specific documents

with[in] a larger mass of material that it has already turned over’ ” (quoting United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997))). 

RHOADES v. HENRY (Baldwin) 3533
were inside it. A witness had seen Rhoades with a similar

handgun after Baldwin was killed, and Rhoades had bought

.38 caliber ammunition like that found in the abandoned car.

A pickup he often drove was seen driving away from the Mini

Barn when Baldwin disappeared. Footprints around where

Baldwin was found were consistent with Rhoades’s largesized boots, as was a hair found on Baldwin’s shirt. Rhoades

had a watch like Baldwin’s in his pocket when he was

arrested. He told Shaw “I did it,” and admitted to Holm that

he kidnapped Baldwin and tried to rape her, told her to pray,

and shot her several times, hitting her twice in the back. In the

court’s view, nothing about this picture would have changed

had the defense received the other reports (or found Buchholz

and he had testified), and had information about Wallace been

presented: the circumstances that made Buchholz’s confession

unreliable would have come out; and Wallace’s statement,

even if admissible, would have been cumulative because a

description similar to hers was already before the jury through

Detective Newbold and cross-examination of Carrie Baier.

[13] We conclude as well that non-disclosure of the “missing” information about Buchholz and Wallace does not undermine confidence in the outcome of the trial. See Kyles, 514

U.S. at 434 (reiterating that a reasonable probability of a different result is shown “when the government’s evidentiary

suppression ‘undermines confidence in the outcome of the

trial.’ ” (quoting United States v. Bagley, 473 U.S. 667, 678

(1985))). Information about the “I don’t want to talk about it”

statement was not suppressed; Rhoades made the statement

himself, and failed to show it was unknown to counsel. The

strong evidence of guilt would not have been materially

altered by Wallace’s statement or the Love report. Accordingly, there is no Brady violation in any of the respects

claimed.

VII

Rhoades argues that the trial court violated his Fifth, Sixth,

Eighth, and Fourteenth Amendment rights by admitting his

3534 RHOADES v. HENRY (Baldwin)
second “I did it” statement, and that the district court abused

its discretion in denying him an evidentiary hearing on the

issue. Alternatively, he submits that he should prevail on the

merits.

[14] The Idaho Supreme Court characterized Shaw’s

remark about the victim being alive if he had arrested

Rhoades earlier as the functional equivalent of interrogation.

Nevertheless, it concluded that Rhoades’s second “I did it”

statement was admissible because Rhoades had been advised

of his rights, had indicated that he understood them, and had

not invoked his right to silence. Rhoades I (Baldwin), 820

P.2d at 675. (Rhoades’s “I don’t want to talk about it” statement, made en route to the station, was not before the Idaho

courts.) The district court found the supreme court’s determination was supported by the record that was before it, presumed this finding to be correct, and found that Rhoades had

presented no evidence rebutting the factual finding. The district court further noted that the second “I did it” statement

came relatively soon after Rhoades was arrested and Miranda

warnings were administered. Additionally, in the district

court’s view, Rhoades’s “I did it” response was not the product of coercive interrogation so much as it was uttered during

a brief exchange while booking was in process when Shaw

made an offhand comment. Thus, the court concluded,

Rhoades waived his Miranda rights by saying “I did it.” 

To avoid this conclusion, Rhoades sought to present evidence that was not developed in state court: his “I don’t want

to talk about it statement.” The district court found that

Rhoades had been given full and fair opportunities to develop

facts having to do with this statement in state court, and had

not shown cause and prejudice for failing to do so. In this it

did not err, for reasons we have explained: Rhoades made the

statement himself, therefore “possessed” it, and did not show

that his counsel was unaware of it. Regardless, the district

court concluded that, even if the new evidence were considered, Rhoades would still not be entitled to relief. The court

RHOADES v. HENRY (Baldwin) 3535
reasoned that the discussion in the car involved an unrelated

burglary, not the murder of Stacy Baldwin, and when

Rhoades said he “didn’t want to talk about it, get these handcuffs off” it was in the context of complaining about the

cramped conditions in the car. At most, in the district court’s

view, this amounted to an ambiguous or equivocal statement

regarding Rhoades’s right to silence. As such, the court held,

Rhoades’s statement was analogous to the ambiguous reference to assistance of counsel that the Supreme Court held in

Davis v. United States, 512 U.S. 452 (1994), was insufficient

to invoke that particular right or to shut down police questioning. Id. at 458. 

[15] Rhoades maintains that once the district court

assumed that the record had been expanded to include the “I

don’t want to talk about it” statement, it should have proceeded to determine whether an evidentiary hearing was

required under Townsend v. Sain, 372 U.S. 293 (1963).13 Had

it done so, Rhoades contends that he would have met three of

the Townsend factors — (4), (5), and (6) — and the court

would have been able to make credibility determinations as

well as develop additional facts. However, as the district court

found and we have discussed, evidence of the “I don’t want

to talk about it” statement is not newly discovered as Rhoades

made the statement himself and his counsel was aware of

information in the Shaw report. This undercuts each of the

factors upon which Rhoades relies. The evidence could rea13An evidentiary hearing in federal habeas proceedings is required (1)

where the merits of a factual dispute were not resolved in state hearings;

(2) the state factual determination was not fairly supported by the record;

(3) the state’s fact-finding procedure was not adequate to afford a full and

fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) material facts were not adequately developed at the state court

hearing, for which there is no cause or prejudice; or (6) for any reason it

appears that the state trier of fact did not afford the applicant a full and

fair hearing on the facts. Townsend, 372 U.S. at 312-13; Keeney v.

Tamayo-Reyes, 504 U.S. 1, 8-11 (1992) (modifying Townsend’s fifth factor). 

3536 RHOADES v. HENRY (Baldwin)
sonably have been presented to the state trier of fact. Id. at

317. Although Rhoades argues that he tried to obtain all of his

statements but the state withheld his en route invocation of the

right to silence, evidence adduced in post-conviction proceedings supports a contrary conclusion. Keeney, 504 U.S. at 8-11

(holding that cause must be shown). Finally, Rhoades does

not suggest any respect in which the state trier of fact

deprived him of a full and fair hearing. Accordingly, Rhoades

was not entitled to an evidentiary hearing under Townsend. 

Even if the district court’s ruling on the merits were not

premature, as Rhoades maintains it was, he takes issue with

the court’s analysis. He argues that clear and convincing evidence rebutted the presumption of correctness accorded to the

Idaho Supreme Court’s determination that he understood what

was going on around him. We disagree. While Idaho officers

present at Rhoades’s arrest testified that he was high,

appeared to be under the influence of drugs, and was impaired

at that time, Shaw also testified that Rhoades knew to the dollar how much money he had. This supports the supreme

court’s finding. 

Further, Rhoades faults the district court for dividing

Shaw’s interrogation into distinct parts, treating the burglary

separately from the murder. He suggests that instead, the references to burglary and murder were connected by the sheer

number of police officers who showed up, which could indicate that more was afoot than just an ordinary burglary, and

by Shaw’s comment at the station, which linked the two. In

the same vein, Rhoades suggests that it would be fair to

assume he knew the subject of Shaw’s questioning en route

to the station was really homicide so his invocation of the

right to silence applied to both. No basis appears in the record

to suppose this, however. Shaw was executing an arrest warrant for burglary; he referred in the car only to a burglary

about which he and Rhoades had talked in the past, not to

murder; and his comment at the station introduced the murder,

a different topic, for the first time. 

RHOADES v. HENRY (Baldwin) 3537
Finally, even if the conversation in the car were limited to

the burglary, Rhoades contests the district court’s conclusion

that his Miranda rights were “scrupulously honored” under

Michigan v. Mosley, 423 U.S. 96 (1975), because Shaw never

cut off questioning. See id. at 104. We disagree. Mosley did

not establish a rule of either perpetual duration or of global

reach. As the Court explained, the person being questioned

“can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id.

Thus, a person in custody “may waive his right to remain

silent selectively, waiving it with regard to some, but fewer

than all, topics of discussion.” United States v. Garcia-Cruz,

978 F.2d 537, 541-42 (9th Cir. 1992) (rejecting petitioner’s

argument that when he said “I do dictate the gang. And, and,

and, and I’m not, that’s all I can say,” he invoked his right to

silence, construing it instead as a selective revocation of a

prior waiver). Rhoades’s statement in context was at best

ambiguous, indicating that he did not want to talk about the

burglary and wanted the handcuffs off. Shaw stopped asking

Rhoades about the burglary while Rhoades was handcuffed

and cramped in the car. The “I did it” statement came after the

handcuffs were removed and while Rhoades was being

booked at the station, in response to a different point about the

murder. In these circumstances no Mosley error occurred.

[16] We conclude that admitting the second “I did it” statement was not constitutional error.

VIII

[17] Rhoades contends that the trial court gave three

instructions — Nos. 16, 17, and 27 — that are constitutionally

infirm because they had the effect of lowering the state’s burden of proving every element of the offense beyond a reasonable doubt. If so, there would be Winship and Cage error, and

the Due Process Clause of the Fourteenth Amendment would

be offended. In re Winship, 397 U.S. 358, 364 (1970); Cage

v. Louisiana, 498 U.S. 39, 39 (1990). 

3538 RHOADES v. HENRY (Baldwin)
[18] We must decide whether “there is a reasonable likelihood that the jury has applied the challenged instruction in a

way that prevents the consideration of constitutionally relevant evidence.” Morris v. Woodford, 273 F.3d 826, 833 (9th

Cir. 2001). The question is not whether the jury could have

done so, but whether there is a reasonable likelihood it did.

Victor v. Nebraska, 511 U.S. 1, 6 (1994). And we are not to

engage in a “technical parsing” of the language; instead, we

should think of the instructions as the jury would — “with a

commonsense understanding of the instructions in the light of

all that has taken place at trial.” Johnson v. Texas, 509 U.S.

350, 367 (1993) (internal quotations omitted).

[19] Instruction 1614 uses two phrases — “moral evidence”

and “moral certainty” — which to Rhoades both diminishes

the importance of the reasonable doubt standard and offends

Cage. In Cage, the Court addressed an instruction that defined

reasonable doubt in part as “It must be such doubt as would

give rise to a grave uncertainty, . . .” and “[A reasonable

doubt] is an actual substantial doubt.” The instruction then

stated: “What is required is not an absolute or mathematical

certainty, but a moral certainty.” The Court held that the

words “substantial” and “grave” connote a higher degree of

doubt than required under the reasonable doubt standard and

that, when considered with a reference to “moral certainty”

14Instruction 16 stated: 

A defendant in a criminal action is presumed to be innocent until

the contrary is proved and in case of a reasonable doubt whether

his guilt is satisfactorily shown, he is entitled to an acquittal. This

presumption places upon the State the burden of proving him

guilty beyond a reasonable doubt. 

Reasonable doubt is defined as follows. It is not a mere possible

doubt because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary

doubt. It is that state of the case which after the entire comparison

and consideration of all of the evidence leaves the minds of the

jurors in that condition that they cannot say they have an abiding

conviction to a moral certainty of the truth of the charge. 

RHOADES v. HENRY (Baldwin) 3539
rather than evidentiary certainty, could allow a finding of guilt

below that required by the due process clause.15 After Cage,

however, the Court in Victor directly addressed, and upheld,

the constitutionality of a reasonable doubt instruction that had

both phrases and was virtually identical to Instruction 16.

Victor, 511 U.S. at 16-17. We also considered an instruction

identical to the one given here (thus also to the instruction

given in Victor) in another Idaho capital case, Leavitt v.

Arave, 383 F.3d 809 (9th Cir. 2004), and found nothing constitutionally problematic. Id. at 822. 

[20] As in Victor, Instruction 16 was accompanied by

instructions that admonished jurors they could only base a

decision on evidence presented in the case, and that they must

have an “abiding conviction” of the truth of the charge. As the

Court explained in Victor, this correctly states the burden of

proof without reference to moral certainty. 511 U.S. at 14-15.

Rhoades suggests that the jury could have taken the “moral

certainty” language to refer to the ethics or morality of the

charged offense, but we do not believe that, reading the

instructions as a whole, it is reasonably likely the jury did

understand the instruction this way. Accordingly, we conclude that Instruction 16, in light of the remaining instructions, passes constitutional muster.

[21] Instruction 17 indicates that the burden of proof is not

intended to aid anyone who is in fact guilty to escape.16 In

15The Court subsequently clarified that the proper inquiry is not whether

the instruction “could have” been applied in an unconstitutional manner,

but whether there is a reasonable likelihood that the jury did so apply it.

See Victor, 511 U.S. at 6. 

16Instruction 17 stated: 

The rule of law which clothes every person accused of a crime

with the presumption of innocence and imposes upon the state the

burden of proving his guilt beyond a reasonable doubt is not

intended to aid anyone who is in fact guilty to escape but is a

humane provision of the law intended so far as human agencies

can to guard against the danger of an innocent person being

unjustly punished. 

3540 RHOADES v. HENRY (Baldwin)
Rhoades’s view, this essentially guts the presumption of innocence and requirement of proof beyond a reasonable doubt,

allowing jurors who did not believe he was legally guilty —

that is, guilty beyond a reasonable doubt — to vote to convict

because they may have thought he was actually guilty. The

state counters that Rhoades’s challenge is Teague-barred

because the Supreme Court has never addressed an instruction

such as Instruction 17, nor is there a consensus among other

courts that any such instruction is unconstitutional. See

Teague v. Lane, 489 U.S. 288 (1989). 

We start with Teague. See Caspari v. Bohlen, 510 U.S. 383,

389 (1994) (holding that if the state argues that the petitioner

seeks the benefit of a new rule of constitutional law, the court

must apply Teague before considering the merits). Teague

generally precludes retroactive application of a new rule on

collateral review.17 “[A] case announces a new rule when it

breaks new ground or imposes a new obligation on the States

or the Federal Government. To put it differently, a case

announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became

final.” Teague, 489 U.S. at 301 (citations omitted). The state

relies on Leavitt, where we examined an instruction identical

to Instruction 17 and concluded that a decision invaliding the

instruction for Cage error would be barred by Teague because

Cage, which did announce a new rule, came down after

Leavitt’s conviction was final. The state recognizes that

Rhoades’s conviction became final after the decision in Cage

was rendered, but argues that the same principle nevertheless

applies because there was still no consensus that the instruction was constitutionally erroneous. We think otherwise, for

it would run afoul of Cage if it were reasonably likely that the

jury interpreted the instructions to allow a verdict on a stan17There are two exceptions, one for new rules that place conduct beyond

the power of the government to proscribe, the other for watershed rules of

criminal procedure. Neither is implicated here. 

RHOADES v. HENRY (Baldwin) 3541
dard less than required by the due process clause. Therefore,

the rule would not be retroactively applied.

[22] As we explained in Leavitt, the instruction itself is

disfavored. See 383 F.3d at 819-21. We disapproved it on

direct appeal in Reynolds v. United States, 238 F.2d 460, 463

(9th Cir. 1956), though not on constitutional grounds, as have

other courts. See Leavitt, 383 F.3d at 819-21 (discussing

cases); see also Shaw v. United States, 244 F.2d 930, 938 (9th

Cir. 1957) (disapproving instruction but holding that we are

not bound to reverse in every case where it is given). And we

disapprove it again now. The vice in such an instruction is

that a jury could believe it doesn’t need to apply the presumption of innocence or hold the government to its burden of

proving the defendant’s guilt beyond a reasonable doubt if it

thinks the defendant did it. However, this does not answer the

question before us, which is whether it is reasonably likely

that Instruction 17, in the context of the instructions overall,

actually caused the jury to misapply the presumption of innocence or the state’s burden of proof. We conclude that it did

not. 

[23] The trial court gave other instructions that properly

defined the presumption of innocence, the burden of proof,

and the jury’s obligation to honor both. For example, the jury

was told, more than once, that: Rhoades was presumed to be

innocent unless and until he was proven guilty beyond a reasonable doubt; the state had the burden to prove every material allegation for each crime charged beyond a reasonable

doubt, and the jury must be satisfied beyond a reasonable

doubt that Rhoades is guilty of each offense; and its decision

must be based solely on the evidence presented in court, not

on any other consideration. We conclude that read together,

the instructions overall resolved any ambiguity in Instruction

17, thereby leaving no reasonable probability the jury did not

3542 RHOADES v. HENRY (Baldwin)
understand they must apply the presumption of innocence and

the reasonable doubt standard to Rhoades’s case.18

[24] Rhoades asserts that Instruction 2719 implicates Winship, but fails to develop any argument why it does. It doesn’t,

as we held in Leavitt. 383 F.3d at 822 (explaining that “the

prosecution need not prove every fact in the case beyond a

reasonable doubt so long as it proves every element beyond

a reasonable doubt”).

IX

Rhoades asserts that trial counsel was ineffective in allowing a ballistics expert to disclose his reports to the prosecution. The defense first retained Richard Fox, who would have

testified about the unreliability of ballistics evidence generally

but was equivocal on whether the bullet from Baldwin’s body

matched the gun linked to Rhoades. Parmenter then consulted

Ned Stuart to do a second comparison. Stuart concluded the

bullet was fired from the gun associated with Rhoades, and

sent his findings to Parmenter and to the prosecution. After

the prosecution’s expert testified at trial, the prosecutor indicated that he would present Stuart’s findings in rebuttal if Fox

were called. Parmenter did not call Fox.

18The Second Circuit reached a similar conclusion in DelValle v. Armstrong, 306 F.3d 1197 (2d Cir. 2002), where a petitioner challenged a similar instruction and “[t]he trial court repeatedly emphasized throughout its

jury instructions that appellant was entitled to a presumption of innocence

and that the state bore the burden of proving each element of the crime

beyond a reasonable doubt.” Id. at 1201. 

19Instruction 27 stated: 

It is not necessary that all the facts and circumstances surrounding the testimony and evidence that is given on behalf of the State

shall be established beyond a reasonable doubt. All that is necessary is that all the facts and circumstances in evidence, together,

shall establish the defendant’s guilt beyond a reasonable doubt.

RHOADES v. HENRY (Baldwin) 3543
[25] The district court found that Rhoades could not establish prejudice because Fox’s testimony would not have provided anything more than incremental assistance to the

defense and much of the information that would have been

presented through Fox was in evidence anyway. We agree.

Parmenter admitted to the trial court that Fox’s testimony

would not have contradicted the government expert’s. Parmenter also testified at his deposition that Fox’s theories were

out of the mainstream and likely to be unhelpful. And counsel’s cross-examination of the prosecution’s expert brought

out the weaknesses in ballistics testing as Fox’s testimony

would have done, so the same ground was covered. 

Rhoades’s corresponding claim that he should have been

given an evidentiary hearing is unsupported by argument. We

will not find an abuse of discretion in these circumstances.

X

Rhoades claims that counsel was ineffective in failing to

investigate, develop, and present mental state issues.20

Although Rhoades asserts that Parmenter was ineffective in

handling mental state issues at trial as well as at sentencing,

he develops no argument with respect to the guilt phase.

Accordingly, we take it that Rhoades means to argue that at

no time during the proceeding did counsel perform adequately

with respect to mental health issues pertinent to sentencing.

Otherwise, we deem any guilt-phase claim to be abandoned.

See Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir. 2000).

20Having previously dismissed Rhoades’s claims of ineffective assistance of trial counsel for procedural default, the court reversed course in

light of our decision in Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001),

holding that Idaho’s forty-two day limit for seeking post-conviction relief

during which no new counsel was appointed frustrated the right to raise

claims of ineffective assistance in state court. Id. at 530-36. It allowed

Rhoades to develop the factual basis of his claim, and to file a proffer in

support. Having considered the proffer, the court found no evidentiary

hearing required and denied relief on the merits. 

3544 RHOADES v. HENRY (Baldwin)
Relatedly, we must consider whether the district court abused

its discretion in denying an evidentiary hearing on this claim.

A

Parmenter’s deposition was taken in May 1996 in the federal habeas proceedings. It shows that before trial, Parmenter

spoke with a psychiatrist retained by Rhoades’s attorneys in

the Michelbacher and Haddon cases, and found out the results

of this doctor’s testing did not support an insanity plea. Based

on this, his own knowledge of Rhoades, and his experience

working with people at a mental hospital, Parmenter did not

pursue further psychological testing. In preparation for sentencing, he talked to a lot of family members, several

acquaintances, and to Rhoades’s former employer. He spent

twenty to twenty-five hours on it. Parmenter submitted a presentence report prepared by Daryl Gardner of Idaho Protective Specialists that included a statement from Rhoades

professing his innocence; Rhoades’s explanation for some

prior arrests; and a brief description of his family, education,

and relationships. In general, it highlighted Rhoades’s positive characteristics, in particular with females. It also

addressed Rhoades’s childhood polio, how he was discriminated against due to his family’s reputation, and his drug and

alcohol use. 

The state submitted a presentence report as well. It outlined

Rhoades’s criminal record, family information, interests and

activities, education, and employment. Like Rhoades’s, the

state’s report noted that he had polio as a child, that he sometimes had to fight just because his name was Rhoades, that he

was not aggressive toward people or animals, that he often

babysat his nieces and nephews, and that he was a skilled

sheetrocker. Unlike Rhoades’s report, the state’s noted that

Rhoades had applied to the Army and Marine Corps but had

been turned down due to polio. In addition, it included a section on Rhoades’s health, reciting that Rhoades denied having

any mental or emotional problems, has a balance problem as

RHOADES v. HENRY (Baldwin) 3545
a result of his polio, and had used (and abused) drugs of all

kinds for nineteen years. Finally, the state’s report indicated

that collateral contacts and family members described

Rhoades’s youth and early adulthood as “comparatively normal.” 

At the sentencing hearing, the state called no witnesses and

Parmenter called twelve (Rhoades’s mother, father, two sisters, two paternal aunts, and two paternal uncles; two friends;

and two jail officials). Some noted Rhoades’s childhood polio

and foot surgeries, and how he was left poorly coordinated.

Four mentioned his drinking, though they also indicated he

was a less troublesome drunk than other members of his family. Several witnesses discussed how Rhoades was a good

worker, and the jailors testified that he was well-behaved.

Parmenter’s closing argument reiterated Rhoades’s redeeming qualities and good character traits, noted that he hasn’t

had the easiest life, and expressed his own view that it was

relatively tough growing up as a Rhoades. The state emphasized the circumstances of Baldwin’s kidnapping and murder,

and Rhoades’s recent murder and kidnapping convictions. 

Under Idaho law at the time of Rhoades’s sentencing, when

a person is convicted of first degree murder the judge determines whether at least one of ten statutory aggravating circumstances has been established beyond a reasonable doubt.

See Idaho Code § 18-4004 (1988); id. § 19-2515. If at least

one circumstance is found, the court “shall sentence the

defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of

any aggravating circumstance found and make imposition of

death unjust.” Id. § 19-2515(c). The same mitigation inquiry

is made in the case of first degree kidnapping if the judge

finds, beyond a reasonable doubt, at least one of five statutory

aggravating circumstances. See id. §§ 18-4504, 4505. 

The trial judge found five aggravating circumstances on the

murder conviction beyond a reasonable doubt: (1) Rhoades

3546 RHOADES v. HENRY (Baldwin)
was previously convicted by jury of the kidnapping and first

degree murder of Susan Michelbacher, and pled guilty to the

second degree murder of Nolan Haddon. Id. § 19-2515(g)(1).

(2) The murder was especially heinous, atrocious or cruel,

manifesting exceptional depravity, in that Rhoades cased the

convenience store where Baldwin worked, snatched her from

her place of employment, drove her to a secluded spot,

attempted to attack her, and shot at her several times, finally

hitting her as she was on her knees with her back towards him

trying to escape. Id. § 19-2515(g)(5). (3) Rhoades exhibited

utter disregard for human life; he shot at the victim several

times, finally striking her in the back, and also left Baldwin

alive to die in the cold one to one and a half hours later. Id.

§ 19-2515(g)(6). (4) Rhoades was guilty of murder in the first

degree in perpetration or attempt to perpetrate rape, and/or

robbery and/or kidnapping, planned to do these things, and in

addition, used a firearm. Id. § 19-2515(g)(7). (5) Rhoades has

exhibited a propensity to commit murder which will constitute

a continuing threat to society; the Baldwin case is one of three

similar type killings in which he had his victims subdued at

gunpoint, and had no reason to be emotionally involved. Id.

§ 19-2515(g)(8). 

With respect to the kidnapping conviction, the court found

three aggravating circumstances beyond a reasonable doubt:

(1) Baldwin would never willingly allow anyone to molest her

or take her any place against her will; taking her to a secluded

place, and the subsequent attack and shooting, which caused

her to lay wounded for over an hour before she died, constitutes torture and grievous physical injury. Idaho Code § 18-

4505(6)(a). (2) Rhoades knowingly created a great risk of

death to Baldwin. Id. § 18-4505(6)(b). (3) Rhoades did not

know the victim; considering her sensibilities, the abduction

was especially heinous, atrocious and cruel, and manifested

exceptional depravity. Id. § 18-4505(6)(d).

The trial judge acknowledged mitigating circumstances

including age, background, gentleness, and drug use, as well

RHOADES v. HENRY (Baldwin) 3547
as the others that were argued, and found the historical facts

in accord with the presentence reports. The court observed

(among other things) that, although his family and friends say

Rhoades is easy going and gentle, he did intend to rob, kidnap, and kill Baldwin and his gentleness did not carry over to

the persons he abducted and later killed. It concluded that the

mitigating circumstances “do not outweigh the gravity of the

statutory aggravating circumstances.” Responding to

Rhoades’s post-conviction argument that the court had collectively weighed the mitigating circumstances against all aggravating circumstances, the trial judge clarified that he weighed

the mitigating circumstances collectively against each aggravating circumstance. Thus, the fact that Rhoades was previously convicted of another murder outweighed the mitigating

circumstances. 

In addition to taking Parmenter’s deposition in the federal

habeas proceeding, Rhoades submitted a 1000-page proffer

that included declarations from Craig Beaver, Ph.D., a

neuropsychologist, Pablo Stewart, M.D., a psychiatrist and

neurologist, two police officers, members of Rhoades’s family and friends; medical records for Rhoades and his family;

criminal records for his father and other family members; his

elementary school transcript; and a family tree depicting drug

and alcohol abuse, suicide, intelligence, mental health, and

criminal convictions. 

Dr. Beaver’s declaration, which synthesized the other declarations as well as the records in Rhoades’s proffer, indicates

that Rhoades’s father was intellectually deficient, physically

abused, and suicidal before marrying his mother; there was

extensive alcoholism and drug addiction in Rhoades’s immediate and extended family; reportedly Rhoades’s parents beat

up at least some of their children and there was physical and

emotional abuse between his father and mother; Rhoades’s

sister was sexually abused by cousins and an uncle, and there

were reports of “unhealthy sexual behaviors” among

Rhoades’s sisters and extended family; one of Rhoades’s sis3548 RHOADES v. HENRY (Baldwin)
ters told another sister that she had been sexually active with

Rhoades for years, and Rhoades entered into a sexual relationship with his aunt after his uncle committed suicide;21 and his

family had an extensive criminal history. Beaver further

stated that “[t]he alcoholism and suicides seen in the past generations of [Rhoades’s] family very likely play a genetic role

in the emotional and mental health of [Rhoades] and his siblings.” His report concluded that Rhoades’s family context

deprived him of normal development; his own medical problems further limited his potential as a human being; it was not

surprising that he had chemical dependency issues and knew

little about normal sexual and interpersonal relationships; his

drug addiction was overdetermined; he was genetically loaded

for substance abuse; his chronic use of methamphetamine

“may well have damaged his brain in areas critical to impulse

control and the ability to think clearly in high pressured situations”; and “further neurophysychological testing has always

been necessary to fully and adequately assess Paul Rhoades.”

Based on Beaver’s declaration and other items in the proffer, Dr. Stewart provided a “working assessment regarding

psychiatric findings.” He wrote that Rhoades was at significant risk of developing a substance abuse disorder from an

early age; Rhoades inherited the diseases of alcoholism and

drug abuse; he was born into a family that suffered from

major mental illness and neuropsychological impairment;

multiple members of Rhoades’s family have been institutionalized, have been determined to have sub-average intelligence, and have committed suicide — which puts Rhoades “at

substantial risk of developing his own mental health prob21No factual allegations with respect to either incestuous relationship in

which Rhoades participated, one with his sister (as recently as a few days

before his Nevada arrest) and another with an aunt after his uncle committed suicide, are made in the Third Amended Petition. We note that

Rhoades had asked for a similar allegation in his petition in the Michelbacher case to be deleted. In any event, it is unlikely that this would have

helped his mitigation case. See Idaho Code § 18-6602 (1988) (defining

incest and providing punishment for up to ten years imprisonment). 

RHOADES v. HENRY (Baldwin) 3549
lems, including mood disorders, cognitive dysfunction, substance abuse, and suicidality”; Rhoades “may have been born

with some mental deficiencies”; he was placed in special education classes in school; Rhoades’s family is overwhelmingly

positive for mental illness, which “places him at severe risk

for developing his own mental health conditions”; and

Rhoades’s history, including polio, is “extremely suggestive

of his suffering from post Traumatic Stress Disorder that had

a childhood onset” even though the requirements of the DSIV are not satisfied in all aspects. Stewart’s “working assessment” listed diagnoses of Posttraumatic Stress Disorder, Cognitive Disorder NOS, Substance Induced Mood Disorder, and

Substance Induced Psychotic Disorder, without further elaboration.

B

Rhoades faults Parmenter for painting him as a fully aware

and alert person in control of his faculties who chose to do

what he was accused of doing. In Rhoades’s view, this was

the result of counsel’s failure to conduct or complete an investigation, whereas a proper investigation would have uncovered mitigating evidence about his growing up in a family

context of physical and emotional violence, alcohol, drugs,

and sexual abnormality of the sort exemplified in the factual

proffer that he made to the district court. The district court

concluded that even if the factual allegations in the proffer

were true, Rhoades failed to establish a Sixth Amendment

claim under Strickland. While the court believed that Rhoades

had alleged sufficient facts to show at least a colorable claim

that counsel’s investigation fell below an objective standard

of reasonableness for a capital case in the late 1980s, it held

there was no reasonable probability that had counsel conducted the type of mitigation investigation Rhoades believes

he should, the outcome of the sentencing hearing would have

been different. In the court’s opinion, the aggravating circumstances were too strong, and the new mitigating evidence

3550 RHOADES v. HENRY (Baldwin)
added too little, to create a reasonable probability of a different outcome. 

[26] “To prevail on this claim, [Rhoades] must meet both

the deficient performance and prejudice prongs of Strickland.” Wong v. Belmontes, 130 S. Ct. 383, 384 (2009) (per

curiam). Accordingly, if Rhoades cannot meet “the highly

demanding and heavy burden of establishing actual prejudice,” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005)

(internal quotation marks and brackets omitted), it is unnecessary to determine whether Parmenter’s performance was deficient, see Strickland, 466 U.S. at 697 (“If it is easier to

dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice that course should be followed.”). We follow this course.

To demonstrate actual prejudice under Strickland, a “ ‘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. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’ ” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting

Strickland, 466 U.S. at 694). “To assess that probability, we

consider the totality of the available mitigation evidence —

both that adduced at trial, and the evidence adduced in the

habeas proceeding — and reweigh it against the evidence in

aggravation.” Porter v. McCollum, 130 S. Ct. 447, 453-54

(2009) (per curiam) (internal quotation marks and brackets

omitted). Finally, “[i]n evaluating prejudice,” Rhoades’s “ineffective assistance claims based on a duty to investigate must

be considered in light of the strength of the government’s

case.” Rios v. Rocha, 299 F.3d 796, 808-09 (9th Cir. 2002)

(internal quotation marks omitted). 

[27] We agree with the district court’s analysis. The aggravating circumstances that include two other murders are

extremely strong. While the new evidence shows a more complete picture of Rhoades’s immediate and extended family

RHOADES v. HENRY (Baldwin) 3551
and their abusive, often criminal, and alcoholic lives, even so,

as the court found, there is no persuasive evidence that

Rhoades himself was abused as a child, abandoned, placed in

the state’s custody, or otherwise institutionalized. Also as the

court found, despite the passage of twenty years, the expert

declarations do not conclusively fill in the blanks about

Rhoades’s mental or emotional state. 

Beaver opined only that alcoholism and suicides in

Rhoades’s family “very likely” play a genetic role in his mental health; that he “was genetically loaded for substance

abuse”; and that his chronic use of methamphetamine “may

well” have damaged his brain. Stewart’s working assessment

is similarly indeterminate. For example, he stated that

Rhoades’s family history places him “at substantial risk” of

developing his own mental health problems, and that he

“may” have been born with some mental deficiencies. The

mitigating value of Stewart’s most concrete assessment, that

Rhoades “does suffer” from Postraumatic Stress Disorder

(PTSD), is lessened because his diagnosis admittedly does not

satisfy the requirements of DSM-IV for this condition. Cf.

Comer v. Schriro, 463 F.3d 934, 944 (9th Cir. 2006) (concluding the district court did not clearly err in determining the

petitioner did not have PTSD in light of an expert’s inability

to apply the DSM-IV criteria accurately). There also is no

suggestion that Rhoades kidnapped, tried to rape, or murdered

Baldwin while in any kind of a PTSD-induced disassociative

state.

[28] Speculation about potential brain dysfunctions or disorders “is not sufficient to establish prejudice.” Bible v. Ryan,

571 F.3d 860, 871 (9th Cir. 2009); see also Raley, 470 F.3d

at 802-03 (finding no prejudice in part because none of the

petitioner’s experts “conclusively opined that [he] had a mental defect”); Smith v. Mitchell, 348 F.3d 177, 201-02 (6th Cir.

2003) (finding no prejudice, and that new mitigating evidence

of organic brain damage was “not compelling” as the petitioner’s expert concluded there was only a “likelihood of neuro3552 RHOADES v. HENRY (Baldwin)
logical impairment”). In the main, both the Beaver and

Stewart reports are speculative. They talk in terms of conditions that Rhoades “likely” has or “may” have. By contrast,

expert opinions in cases where prejudice has been found identified injuries or conditions that the petitioner actually has.22

Rhoades is certainly correct that a formal diagnosis is not necessary before an opinion may be considered, but this is not an

issue in this case because the district court considered both

reports, as do we. There is a difference between rejecting a

proffered opinion, and concluding that it is not weighty

enough to change the outcome. Rhoades is also correct that

the quantity and quality of mitigation information in his

experts’ reports exceeds what was uncovered and presented

by trial counsel. But this, too, misses the mark. As the

Supreme Court recently reminded us, the determinative comparison is between “the totality of the available mitigation”

and “the evidence in aggravation.” Porter, 130 S. Ct. at 453-

54. 

[29] The sentencing court was aware of, but not persuaded

by, several mitigating circumstances that are prominently featured in the proffer. It learned about Rhoades’s drug and alcohol abuse from a variety of sources. The court also knew

22See, e.g., Rompilla v. Beard, 545 U.S. 374, 392 (2005) (postconviction experts found petitioner “ ‘suffers from organic brain damage,

an extreme mental disturbance significantly impairing several of his cognitive functions’ ”); Wiggins, 539 U.S. at 518 (“’[D]etailed social service

records [ ] recorded . . . [petitioner’s] borderline retardation.’ ”); Williams

v. Taylor, 529 U.S. 362, 370 (2000) (post-conviction testimony showed

petitioner “was ‘borderline mentally retarded,’ had suffered repeated head

injuries, and might have mental impairments organic in origin”); Lambright v. Schriro, 490 F.3d 1103, 1111-12 (9th Cir. 2007) (post-conviction

experts agreed petitioner “suffers from a depressive disorder and from

polysubstance dependency” and petitioner’s expert concluded he “suffers

from a personality disorder with antisocial, borderline, and inadequate features”); Stankewitz v. Woodford, 365 F.3d 706, 718 (9th Cir. 2004) (three

post-conviction experts agreed petitioner “is brain-damaged” and one

expert concluded he “is borderline retarded” and “suffers from significant

brain dysfunction”). 

RHOADES v. HENRY (Baldwin) 3553
about Rhoades’s childhood health problems, including polio

and foot surgeries, and the social and physical difficulties they

caused. It was informed that Rhoades had limited education

and was turned down by the armed forces. It was apprised of

Rhoades’s redeeming qualities by family and friends, who

described him as a gentle, caring, and likable person until he

started abusing drugs. The judge expressly recognized these

positive traits, but concluded that they did not carry over to

the persons Rhoades abducted and later killed. Thus, much of

the newly adduced evidence is cumulative, and “adding it to

what was already there would have made little difference.”

Belmontes, 130 S. Ct. at 387.

Even the more complete picture portrayed in the proffer of

Rhoades’s dysfunctional family with its alcoholism, abuse,

aberrant sexual behavior, and criminal conduct does not

depict a life history of Rhoades himself that is nightmarish as

it was for the petitioners in cases such as Rompilla, Wiggins,

and Williams where newly produced evidence in mitigation

has carried the day. In Rompilla, the additional mitigation evidence showed that the petitioner was beaten by his father with

his hands, fists, leather straps, belts and sticks, was subjected

to yelling and verbal abuse, was locked by his father “in a

small wire mesh dog pen that was filthy and excrement

filled”; was isolated as a child without contact with other children; and suffered from organic brain damage that significantly impaired several of his cognitive functions. 545 U.S. at

391-92. The aggravating evidence was a murder committed

during another felony and by torture, and a prior conviction

for rape, burglary, and theft. In Wiggins, the petitioner experienced severe privation and abuse in his first six years of life,

and physical torment, sexual molestation, and repeated rape

thereafter in foster care. The aggravating evidence consisted

solely of his crime, drowning a 77-year old woman in a bathtub and ransacking her apartment. In Williams, new evidence

showed the petitioner had been severely and repeatedly beaten

by his father, had been committed to the custody of the social

services bureau, had no schooling beyond sixth grade, and

3554 RHOADES v. HENRY (Baldwin)
was borderline mentally retarded. The aggravating evidence

included a previous conviction for armed robbery, burglary,

and grand larceny before the murder for which he received the

death penalty, and after it two auto thefts and violent assaults

on elderly victims as well as an arson in jail.23 By comparison,

Rhoades’s newly proffered evidence does not show that he

was subjected to physical or verbal abuse as a child, or that

he was abandoned or mistreated, placed within the state’s custody, or institutionalized. While it is not necessary for abuse

to have been aimed at Rhoades in order to be mitigating, that

there is no evidence it was makes his case less compelling in

light of the strength of the aggravating circumstances than the

Rompilla, Wiggins, and Williams line of cases.

[30] The aggravating circumstances — a conviction for

kidnapping, first degree murder, rape, and the infamous crime

against nature (Michelbacher), and a conviction for second

degree murder (Haddon), in addition to how Rhoades took

Stacy Baldwin from work against her will, drove her to a

secluded spot, tried to rape her, shot her in the back, and left

her to die — are extraordinarily powerful. The new evidence

in mitigation is tenuous. On balance, we conclude that

Rhoades’s newly proffered facts, taking them as true, add too

little, and the aggravating circumstances are too strong, to

make it reasonably probable that the sentencing decision

would have been different but for counsel’s performance. 

23Cf. Porter, 130 S. Ct. at 448-51 (counsel failed to present evidence the

petitioner was his violent father’s favorite target, had once been shot at by

his father who beat him when the shot missed, had heroic military service,

and suffered from brain damage that could manifest in violent, impulsive

behavior; he had been convicted of another violent felony committed during a burglary and the same course of events that resulted in the murder

for which he received the death penalty); Pinholster v. Ayers, 590 F.3d

651, 674-79 (9th Cir. 2009) (en banc) (the jury did not hear that petitioner

suffered vicious and repeated physical abuse from his step-father and

grandmother; had suffered organic, pre-frontal lobe brain damage; and

was placed in a home for emotionally disturbed boys then in a state mental

hospital). 

RHOADES v. HENRY (Baldwin) 3555
[31] Consequently, Rhoades cannot satisfy the prejudice

prong of Strickland, so his claim of ineffective assistance of

counsel for failure to investigate and present mental state

issues at sentencing fails.

C

Rhoades asserts that he was entitled to an evidentiary hearing on this claim, but provides no argument in support. We

take it he has none to make. Rhoades had an opportunity to

develop a factual record and submitted a substantial proffer

that the district court accepted. It found that even if the factual

proffer were credible and proved, Rhoades could not establish

prejudice. As explained, we agree. Rhoades points to no additional evidence that would be presented if an evidentiary hearing were held. In short, no abuse of discretion appears.

XI

We must decide whether imposing the death penalty for

first-degree kidnapping, when the perpetrator kills the victim,

violates the Eighth Amendment. 

[32] Rhoades maintains that because Idaho’s kidnapping

death penalty statute does not require the taking of a life,

imposing a capital sentence is grossly disproportionate to the

offense and is invalid under the Eighth Amendment and

Coker v. Georgia, 433 U.S. 584 (1977), Eberheart v. Georgia,

433 U.S. 917 (1977), and Enmund v. Florida, 458 U.S. 782

(1982).24 In Coker, the Supreme Court held that a death sentence is disproportionate punishment with respect to rape of

an adult woman, noting that the rapist, as such, does not take

human life. 433 U.S. at 598. The same day, the Court applied

24Death is not an element of first degree kidnapping in Idaho, Idaho

Code § 18-4502. The death penalty may be imposed if the sentencing

court finds at least one of several aggravating factors, none of which

requires death. Id. § 18-4504(1); 18-4505(6). 

3556 RHOADES v. HENRY (Baldwin)
Coker to kidnapping and rape of an adult woman. See Eberheart, 433 U.S. at 917. The Court again applied Coker in

Enmund to invalidate imposition of the death penalty for aiding and abetting a felony that results in death when the defendant himself does not kill, attempt to kill, or intend that killing

take place. Enmund, 458 U.S. at 801. See also Kennedy v.

Louisiana, 128 S. Ct. 2641, 2646 (2008) (holding that the

Constitution bars imposition of the death penalty for the rape

of a child “where the crime did not result, and was not

intended to result, in death of the victim”).

[33] The district court held that neither Coker, Eberheart,

nor Enmund bars imposition of the death penalty for Baldwin’s kidnapping because the kidnapping did, in fact, result

in death. Rhoades points out that the trial court did not consider Baldwin’s death to be an aggravating circumstance in

imposing the death penalty, but the trial court did find that

Rhoades intended to shoot and kill Baldwin when he kidnapped her, and that he did shoot her and she died. This distinguishes Rhoades from Coker, Eberheart, and Enmund, who

neither intended to kill their victims nor killed them. As Kennedy indicates with reference to these cases, the Court “has

held that the death penalty can be disproportionate to the

crime itself where the crime did not result, or was not

intended to result, in death of the victim.” 128 S. Ct. at 2650.

Here, Rhoades intended for Baldwin to die when he kidnapped her, and he in fact took her life. When the kidnapper

intends murder and in fact commits murder, the moral distinction between a “murderer” and a “robber,” “rapist,” or “kidnapper” that underlies the rationale in Coker, Eberheart, and

Enmund dissolves. In these circumstances one is not left with

an “abiding conviction” that the death penalty is excessive.

Coker, 433 U.S. at 598. 

Rhoades also claims that the death sentence for kidnapping

involved “double-counting” the fact of Baldwin’s murder

contrary to Idaho law. However, state-law issues are not cogRHOADES v. HENRY (Baldwin) 3557
nizable on federal habeas review. See Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). Therefore, we decline to consider it.

XII

Rhoades asserts that the three statutory aggravating circumstances for kidnapping violate the Eighth Amendment

because they permit imposition of death for a crime less than

murder where the victim is an adult. He makes no argument

in support. To the extent he challenges the aggravators for

allowing the death penalty for less than murder, we have

explained why it was not unconstitutionally imposed as to

Rhoades. Whether Idaho’s first degree kidnapping scheme is

constitutional in some other case where death does not result

is not before us. Beyond this, we decline to suppose what

Rhoades has in mind.

XIII

[34] Rhoades next submits that the evidence was constitutionally insufficient to prove the kidnapping aggravators. So

long as any single aggravator is supported, constitutional

infirmities as to the remaining ones are harmless. See Pizzuto

v. Arave, 280 F.3d 949, 970-71 (9th Cir. 2002). 

[35] We start with the circumstance in Idaho Code § 18-

4505(6)(a), “torture, maiming or the intentional infliction of

grievous mental or physical injury.” Rhoades suggests there

is no evidence showing intentional infliction of extreme and

prolonged pain, which is the definition of torture. Regardless,

there is ample evidence to support the finding with respect to

intentional infliction of grievous mental or physical injury.

Rhoades shot Baldwin three times and fired other shots at her

while she was lying on the ground; Baldwin had sand under

her fingernails and scattered scapes; and she may have lingered, wounded, for an hour or so. At the archery range,

Rhoades told Baldwin “Pray, you fucking cunt.” Rhoades also

argues that the abduction itself was not aggravated; he points

3558 RHOADES v. HENRY (Baldwin)
out that there was no sign of a struggle inside the store, and

that the trip to the site where the body was found would take

about four minutes. But Holm testified that Rhoades told him

that Baldwin was screaming and hysterical in the truck. Further, Rhoades contends that the shooting cannot be used to

establish the physical injury component because the killing

itself would be the basis of a felony-murder charge that, in

turn, could be the basis for a death sentence if the defendant

had a specific intent to kill. However, a rational fact-finder

could find intentional infliction of grievous mental or physical

harm based on Baldwin’s suffering before she died. To the

extent Rhoades also makes a variation of his “doublecounting” argument that turns on Idaho law, we do not reach

it; to the extent he makes some other argument, he offers no

authority in support. Finally, Rhoades attacks the credibility

of witnesses such as Holm and the pathologist whose testimony supports the trial court’s determination. But assessing

the credibility of witnesses and weighing the evidence is for

the trier of fact who, we presume, resolved both in favor of

finding the aggravator. 

[36] After viewing the evidence in the light most favorable

to the prosecution, we conclude that any rational trier of fact

could have found aggravating factor (a) beyond a reasonable

doubt. Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (applying

the Jackson v. Virginia, 443 U.S. 307 (1979), standard to federal habeas review of a state court’s finding of statutory

aggravating factors). Given sufficiency of the evidence on this

aggravator, we have no need to consider the others.

XIV

[37] Rhoades asserts that his appellate counsel rendered

ineffective assistance by failing to raise the unconstitutionality of the death penalty for kidnapping, and correspondingly

that the district court should have held an evidentiary hearing

on this claim. The only argument in support is that otherwise,

his death sentence for first degree kidnapping would have

RHOADES v. HENRY (Baldwin) 3559
been reversed. Absent anything called to our attention about

what counsel thought or how Idaho would likely have

responded to such an argument, we cannot but conclude that

counsel’s performance was neither deficient nor prejudicial.

See Knowles v. Mirzayance, 129 S. Ct. 1411, 1414 (2009)

(holding that counsel’s failure to assert a defense that was “almost certain to lose” did not violate “any ‘prevailing professional norms’ of which the Court is aware”).

XV

Victim impact statements were submitted as part of the presentence investigation report to the trial court. Baldwin’s husband, for example, stated that “he wants the maximum

sentence given to the man who killed Stacy”; that he believes

in the death sentence; and that he didn’t want Rhoades to do

this to anyone else. Her mother-in-law related that the family

favors a death sentence. Her mother stated that she hoped

Rhoades “burns in hell for what he did to Stacy.” She added

that she was glad Stacy fought him, and that she approves of

capital punishment. Rhoades contends that consideration of

such statements offends his Eighth Amendment rights under

Booth v. Maryland, 482 U.S. 496 (1987). In Booth, the

Supreme Court held that the Eighth Amendment precludes (1)

a description of the personal characteristics of the victim or

emotional trauma suffered by the victim’s family, and (2) a

formal presentation of the family’s opinions of the crime. Id.

at 504-05, 508-09. Booth was overruled in part by Payne v.

Tennessee, 501 U.S. 808 (1991), where the Court receded

from a per se rule rejecting admissibility of the first type of

evidence. Id. at 827. Both the Idaho Supreme Court and the

district court held that any Booth error in this case was harmless.

[38] The family statements that Rhoades finds objectionable seem to us to fall more into the second — or still precluded — category than into the first. However, Booth’s

concern that victim impact statements “can serve no other

3560 RHOADES v. HENRY (Baldwin)
purpose than to inflame the jury and divert it from deciding

the case on the relevant evidence concerning the crime and

the defendant,” 482 U.S. at 508, is not the same when, as

here, a judge does the sentencing. We assume that the trial

judge applied the law — Booth, at the time25 — and considered only evidence that he knew was admissible. See Landrigan v. Stewart, 272 F.3d 1221, 1230 (9th Cir. 2001); Smith v.

Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998) (rejecting a similar argument as the judge can “separate the wheat from the

chaff”). Thus, there was no error.

XVI

[39] Rhoades’s last challenge is to Idaho Code § 19-2719,

which imposes a forty-two day time limit for the filing of

post-conviction proceedings in capital cases whereas noncapital defendants have five years within which to pursue

post-conviction relief. He submits this violates his right to due

process and equal protection, but without explication. We

resolved this otherwise in Hoffman v. Arave, 236 F.3d 523

(9th Cir. 2001), where we affirmed as to all challenges to

Idaho Code § 19-2719 except to the extent it applied to ineffective assistance claims when no new counsel had been

appointed. 

AFFIRMED.

25Booth came down June 15, 1987. Rhoades was sentenced May 13,

1988. 

RHOADES v. HENRY (Baldwin) 3561