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1 Dora Schriro, Director of the Arizona Department of Corrections, is substituted

pursuant to Fed. R. Civ. P. 25(d)(1).

2 “Dkt.” refers to the documents in this Court’s file. “M.E.” refers to the minute

entries of the state court. “ROA” refers to the record on direct appeal to the Arizona

Supreme Court (Case No. CR-91-0084). “ROA-PCR” refers to the record from the postconviction proceedings(Case No. CR-97-0527-PC). “RT” refers to the reporter’s transcript.

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Eric John King, )

) CV-98-1277-PHX-RCB

Petitioner, )

)

v. )

) MEMORANDUM OF DECISION

) AND ORDER

Dora Schriro, et al.,1 )

)

Respondents. )

)

Eric John King (Petitioner) filed a petition for writ of habeas corpus alleging that he

is imprisoned and sentenced to death in violation of the United States Constitution. The

second amended petition raises thirteen claims. (Dkt. 26).2

 In an Order dated September

26, 2000, the Court found that Claims 1, 2, 4, 6, 7, 10, 12, and 13 (in part) were procedurally

barred and that Claim 9 failed on the merits. (Dkt. 46.) The Court found that Claims 3, 5,

8, 11, and 13 (in part) were properly exhausted and subject to review on the merits. (Id.)

This Order reviews those claims. For the reasons set forth herein, the Court concludes that

Petitioner is not entitled to habeas relief.

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BACKGROUND

On January 4, 1990, Petitioner was indicted on two counts of first-degree murder and

one count of armed robbery. (ROA 2.) The Arizona Supreme Court described the relevant

factual background as follows:

Shortly after midnight on December 27, 1989, a black male,

brandishing a pistol, robbed the Short Stop convenience market at 48th Street

and Broadway in Phoenix. During the course of the robbery, both the store

clerk and security guard were shot and killed. The robbery was captured on

two time-lapse video cameras. The videotape was admitted into evidence and

showed the robber pointing the gun at the clerk and that clerk moving

backward and then falling to the floor as the robber left the store. Photographs

developed from the videotape depict a black male wearing a dark sweater with

a band of light colored, diamond-shaped markings across the chest and arms.

No one else was present in the store at the time of the robbery.

At approximately midnight on December 27, Frank Madden drove to

the Country Kitchen restaurant parking lot, which is behind the Short Stop on

the north side, where he was to meet his date. As he drove past the Short Stop

toward the restaurant, he saw two black men walking in the parking lot. The

men were a little over 6 feet tall and one of them wore a blue or black and

white sweater with “some kind of pattern like pyramids”; the other man wore

a “green sweatshirt.”

Madden and his girlfriend discovered that the restaurant was closed. As

they were talking, they heard gunshots and immediately drove over to the

Short Stop. When Madden got out of his car and walked toward the front of

the store, he saw the security guard, with an empty gun holster, lying on the

ground. At the same time, the black man with the dark sweater, who Madden

had seen earlier at the Country Kitchen parking lot, was also walking toward

the store.

Madden heard the guard moaning and saw blood on the right side of his

stomach. He phoned 911. While Madden was on the phone, the man with the

dark sweater went over to the security guard, pulled out a white cloth, and

wiped the guard’s holster and belt. After Madden saw him, the man in the

dark sweater left the scene. Madden could not positively identify defendant

as the man he saw that night, but he testified that the man he saw had “high

cheekbones” like defendant’s, that defendant looked very familiar, and the

only difference was that the man he saw had facial hair and was not as nicely

dressed as defendant.

Around midnight, Kevin Harris and his friend David Dils were driving

through the intersection of 48th Street and Broadway when they too heard

gunshots. Harris was looking in the direction of the Short Stop and saw two

black men running away from the store; one of the men held a gun in his hand.

Harris and Dils drove into a nearby parking lot, got out of the car, and

approached the store. Harris saw the security guard lying on the ground and

a man using the phone. Dils checked the guard’s pulse and found none. They

then entered the store and saw the clerk behind the counter; he had been shot

in the right shoulder and stomach and was holding a telephone yelling into the

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receiver. Dils and Harris assisted the clerk until the fire department arrived.

Shortly after the shootings, Nolan Thomas, his son Derek, and Greg

Hecky pulled into the Short Stop. Just as Nolan parked his car, Derek directed

his dad’s attention to the security guard lying on the ground. Nolan looked

over and saw a black man with a mustache and goatee, wearing a black

sweater with a white “logo,” bending over the security guard. Like Madden,

he saw the man wipe off the guard’s empty holster with a white rag and then

run off.

About that time, Phoenix Police Sergeant Richard Switzer received a

radio call to go to the Short Stop. The call included a description of the

suspects. While driving east on Broadway, he saw two black males walking

west on Broadway across 44th Place. Sgt. Switzer made a U-turn and drove

toward the men to determine whether they fit the suspects’ descriptions. Sgt.

Switzer shined a spotlight on the two men, got out of his car, and walked

toward them. Despite Sgt. Switzer’s order to “halt,” one of the men, wearing

a blue sweater with white markings on the upper sleeve, fled the scene running

south. The man who stopped identified himself as Michael Jones. After being

asked about the man who ran away, Jones told Sgt. Switzer that he had just

met the man and did not know him. At trial, Sgt. Switzer testified that he

remembered the man he saw with Jones that night as being slightly taller than

Jones, who was 6 feet 1 inches tall.

Later that night, Nekita Renee Hill and her friend Joann Smith walked

to Smith’s house. Ms. Smith lived in the area of 48th Street and Broadway,

and her house was within walking distance of the Short Stop. During their

walk, they noticed helicopters flying overhead.

As they approached Smith’s house, Hill saw defendant walking toward

a dumpster. She saw him throw a light-colored, thin plastic bag in the

dumpster. The bag contained a gun and a dark sweater with a white diamond

pattern that Hill had seen defendant wearing earlier that night.

Hill knew defendant, who was a childhood friend of her boyfriend

Jones; defendant had frequently visited Jones at Smith’s house while Hill was

there. Sometime later, Hill saw a picture on television that she recognized as

defendant. When she saw defendant’s picture, she called the police.

State v. King, 180 Ariz. 268, 270-71, 883 P.2d 1024, 1026-27 (1994), cert. denied, 516 U.S.

880 (1995). (Id.) Jones and Petitioner were both arrested. Jones was later released and no

charges were filed against him. (Id.) 

A jury convicted Petitioner of all charges; the court sentenced him to death for the two

first-degree murder counts. (ROA 165.) Petitioner appealed to the Arizona Supreme Court,

which affirmed the convictions and sentences. King, 180 Ariz. at 270, 883 P.2d at 1026. 

Petitioner filed a petition for post-conviction relief (PCR) in the trial court pursuant

to Rule 32 of the Arizona Rules of Criminal Procedure; he also requested an evidentiary

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3 Petitioner’s reply raises a new claim by alleging that his death sentence is

invalid because it was imposed by a judge rather than a jury. (Dkt. 57.) A reply brief is not

an appropriate vehicle for raising a new claim. In any event, the claim is without merit. In

Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that a sentencing judge,

sitting without a jury, may not find an aggravating factor necessary for imposition of the

death penalty. In Schriro v. Summerlin, 542 U.S. 348 (2004), however, the Court held that

Ring does not apply retroactively to cases, such as Petitioner’s, that were already final on

direct review at the time Ring was decided. 

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hearing. (ROA-PCR 287.) The trial court denied the petition without a hearing. (ROA-PCR

299; M.E. 4/10/97.) Petitioner filed a motion for rehearing (ROA-PCR 300), which the court

also denied (ROA-PCR 303; M.E. 7/28/97). Petitioner then filed a petition for review in the

Arizona Supreme Court (ROA-PCR 308), which was summarily denied on June 25, 1998.

Petitioner filed a petition for writ of habeas corpus on July 14, 1998. (Dkt. 1). He

filed an amended petition (dkt. 22) on November 20, 1998, and a second amended petition

on December 11, 1998 (dkt. 26). 

In response to this Court’s procedural default order (dkt. 46), Petitioner filed a

memorandum in support of his second amended petition on December 21, 2000, addressing

the merits of the remaining, properly-exhausted, claims (dkt. 51). Respondents filed a

response (dkt. 53), and Petitioner filed a supplemental memorandum and reply (dkt. 57).3

LEGAL STANDARD FOR FEDERAL HABEAS RELIEF

Petitioner’s claims are governed by the provisions of the Antiterrorism and Effective

Death Penalty Act (AEDPA). Lindh v. Murphy, 521 U.S. 320, 336 (1997). For properly

preserved claims “adjudicated on the merits” by a state court, the AEDPA established a more

rigorous standard for habeas relief. See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). As

the Supreme Court has explained, the AEDPA’s “‘highly deferential standard for evaluating

state-court rulings’ . . . demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh, 521 U.S. at 333

n.7).

Section 2254 provides:

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(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless

the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“The threshold question under AEDPA is whether [petitioner] seeks to apply a rule

of law that was clearly established at the time his state-court conviction became final.”

Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection

(d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs

the sufficiency of the claims on habeas review. “Clearly established” federal law consists

of the holdings of the Supreme Court at the time the petitioner’s state court conviction

became final. Id. at 365; see Musladin v. Lamarque, 427 F.3d 653, 655 (9th Cir. 2005)

(“AEDPA limits the source of clearly-established federal law to Supreme Court cases”);

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Habeas relief cannot be granted if

the Supreme Court has not “broken sufficient legal ground” on a constitutional principle

advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529

U.S. at 381. Nevertheless, while only Supreme Court authority is binding, circuit court

precedent may be of “persuasive value” in determining what law is clearly established and

whether a state court applied that law unreasonably. Musladin, 427 F.3d at 655 (collecting

cases); see Clark, 331 F.3d at 1069. 

The Supreme Court has provided guidance in applying each prong of § 2254(d)(1).

The Court has explained that a state court decision is “contrary to” the Supreme Court’s

clearly established precedents if the decision applies a rule that contradicts the governing law

set forth in those precedents, thereby reaching a conclusion opposite to that reached by the

Supreme Court on a matter of law, or if it confronts a set of facts that is materially

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indistinguishable from a decision of the Supreme Court but reaches a different result.

Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In

characterizing the claims subject to analysis under the “contrary to” prong, the Court has

observed that “a run-of-the-mill state-court decision applying the correct legal rule to the

facts of the prisoner’s case would not fit comfortably within § 2254(d)(1)’s ‘contrary to’

clause.” Id. at 406; see Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004). 

Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court

may grant relief where a state court has misapplied a “governing legal principle” to “a set of

facts different from those of the case in which the principle was announced.” Lockyer v.

Andrade, 538 U.S. 63, 76 (2003) (citing Williams, 529 U.S. at 407); see Bell v. Cone, 535

U.S. 685, 694 (2002). In order for a federal court to find a state court’s application of

Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that

the state court’s decision was not merely incorrect or erroneous, but “objectively

unreasonable.” See Williams, 529 U.S. at 409; Visciotti, 537 U.S. at 25.

As the Ninth Circuit has noted, application of the foregoing standards presents

difficulties when the state court decided the merits of a claim without providing its rationale.

See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160,

1167 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000) (Delgado II).

In those circumstances, a federal court independently reviews the record to assess whether

the state court decision was objectively unreasonable under controlling federal law. Himes,

336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently,

a federal court nevertheless defers to the state court’s ultimate decision. Pirtle, 313 F.3d at

1167 (citing Delgado II, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when

a state court did not decide the merits of a properly raised claim will the claim be reviewed

de novo, because in that circumstance “there is no state court decision on [the] issue to which

to accord deference.” Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d

1012, 1025-26 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003). 

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DISCUSSION

The Court now applies these principles to Petitioner’s claims to determine whether,

pursuant to § 2254(d)(1), the state court decisions denying Petitioner’s claims were contrary

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

Claim 3: Prosecutorial misconduct during opening statement.

Petitioner alleges that his rights to a fair trial and due process were violated by

comments made during the prosecutor’s opening statement. (Dkt. 51 at 3.) Specifically,

Petitioner contends that the prosecutor engaged in prejudicial misconduct when he vouched

for the credibility of one of the State’s witnesses, Mr. Jones, and declared to the jury that

another witness, Ms. Hill, feared for her safety. (Id. at 3-9.) For the reasons set forth below,

the Court concludes that this claim is without merit.

Clearly established federal law provides that the appropriate standard of federal

habeas review for a claim of prosecutorial misconduct is “the narrow one of due process, and

not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Therefore, in order

to succeed on this claim, Petitioner must prove not only that the prosecutor’s remarks were

improper but that they “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Id.; see Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.

1995) (relief on such claims is limited to cases in which the petitioner can establish that

prosecutorial misconduct resulted in actual prejudice) (citing Brecht v. Abrahamson, 507

U.S. 619, 637-38 (1993)). 

In determining if Petitioner’s due process rights were violated, the Court “must

consider the probable effect of the prosecutor’s [comments] on the jury’s ability to the judge

the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an

assessment, it is necessary to place the prosecutor’s remarks in context. See Boyde v.

California, 494 U.S. 370, 385 (1990); United States v. Robinson, 485 U.S. 25, 33-34 (1988);

Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). In Darden, for example, the Court

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assessed the fairness of the petitioner’s trial by considering, among other circumstances,

whether the prosecutor’s comments manipulated or misstated the evidence; whether the trial

court gave a curative instruction; and the weight of the evidence against the accused. 477

U.S. at 181-82.

A. Comment regarding Jones’s testimony.

Background:

With respect to Jones’s prospective testimony, the prosecutor made the following

comments during his opening statement: 

You will hear from a man by the name of Michael Page Jones. Mr. Jones was

with Eric King that night. In fact, at one time Mr. Jones was charged as an

accomplice. The case was later dismissed. Michael Jones was with Mr. King.

He told the police officers later in December exactly what happened. I can’t

guarantee you what Mr. Michael Page Jones is going to say when he gets on

the stand, ladies and gentlemen, but he was there that night and he has

information, and I suggest to you that if he testifies truthfully as he should, he

will implicate the defendant, Eric King, without a doubt.

(RT 8/28/90, Volume 3A at 67.)

After the prosecutor completed his opening statement, defense counsel moved for a

mistrial, claiming that the prosecutor had improperly vouched for Jones’s credibility. (Id.

at 72-73.) The trial judge denied the motion, stating that he did not “believe there was a clear

vouching of the witness.” (Id. at 73.) The judge further noted that he had admonished the

jury before opening statements that none of counsels’ comments were evidence and that he

would be giving a similar admonition before closing arguments. (Id.)

On direct appeal, the Arizona Supreme Court rejected Petitioner’s claim, finding that

the prosecutor’s statements, when placed in context, did not constitute improper vouching

for the witness. King, 180 Ariz. at 277, 883 P.2d at 1033. The court explained:

With these statements, the prosecutor was voicing his expectation that Jones’s

testimony would be consistent with the earlier statements that he made to the

police, and that he would implicate King. At the same time, however, the state

was preparing the jury for the possibility that Jones might testify otherwise.

We fail to see, nor does defendant explain, how, by suggesting that one of its

own witnesses might lie on the stand, the state was vouching for the credibility

of its witness. Because we find that the state did not vouch for the credibility

of its witness, we find no error.

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Id. (citations omitted).

Analysis:

One form of prosecutorial misconduct occurs when a prosecutor vouches for the

credibility of a witness. See Young, 470 U.S. at 18-19; Lawn v. United States, 355 U.S. 339,

359-60 n. 15 (1958); United States v. Berger, 295 U.S. 78, 86-88 (1935). “Vouching consists

of placing the prestige of the government behind a witness through personal assurances of

the witness’s veracity, or suggesting that information not presented to the jury supports the

witness’s testimony.” United States v. Necochea, 986 F.2d 1273, 1276 (9th Cir. 1993)

(citing United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). Such vouching

constitutes misconduct because it may lead the jury to convict on the basis of evidence not

presented; it also carries the imprimatur of the government, which may induce the jury to

adopt the government’s judgment rather than its own. See Young, 470 U.S. at 18.

This Court agrees with the Arizona Supreme Court’s characterization of the

prosecutor’s opening statement as preparing the jury for the possible courses Jones’s

testimony might take, rather than vouching for Jones’s credibility as a witness. By

“suggesting” that if Jones testified truthfully he would implicate Petitioner, the prosecutor

neither placed the prestige of the government behind the testimony nor implied that the

government had additional information which would support the credibility of the testimony

but would not be presented to the jury. Moreover, to the extent that the prosecutor’s

comments implied the existence of additional information that would corroborate Jones’s

testimony, that information was not withheld from the jury but was presented through the

testimony of Detective Saldate.

Even if the Court were to accept Petitioner’s characterization of the comments as a

form of vouching, Petitioner’s claim would fail because he has not shown that he was

prejudiced by the prosecutor’s conduct. The Ninth Circuit has observed that courts consider

a number of factors in determining whether prosecutorial vouching requires reversal of a

conviction. See Necoechea, 986 F.2d at 1278. These factors include: 

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[T]he form of vouching; how much the vouching implies that the prosecutor

has extra-record knowledge of or the capacity to monitor the witness’s

truthfulness; any inference that the court is monitoring the witness’s veracity;

the degree of personal opinion asserted; the timing of the vouching; the extent

to which the witness’s credibility was attacked; the specificity and timing of

a curative instruction; the importance of the witness’s testimony and the

vouching to the case overall. 

Id. A review of these factors indicates that the prosecutor’s comments regarding Jones’s

testimony did not render Petitioner’s trial unfair.

While Jones’s testimony was crucial to the State’s case, and the prosecutor’s

comments occurred before Jones’s credibility had been challenged, id.; United States v.

Shaw, 829 F.2d 714, 717 (9th Cir. 1987), other factors support a finding that the comments

were not prejudicial within the context of the entire trial. For example, the comments

represented a single, “isolated incident.” United States v. Combs, 379 F.3d 564, 574 (9th

Cir. 2004). The fact that they were not part of an ongoing pattern of misconduct weighs

against a finding of unfairness. In addition, the remarks were prefaced with the phrase “I

suggest,” which, like the phrase “I submit,” “has been preferred to the use of ‘I think,’ in part

because the latter is more likely to lead the jury to give undue credit to the statement that

follows.” United States v. Weatherspoon, 410 F.3d 1142, 1147 n.3 (9th Cir. 2005); see

United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992).

Furthermore, the prosecutor’s comments did not attain the level of personal assurances

of a witness’s veracity which courts have found objectionable in other cases. For example,

the prosecutor did not imply that the truthfulness of the witness’s testimony would be

monitored. See Shaw, 829 F.2d at 717 (improper vouching occurred where the prosecutor

implied that he would be able to determine whether the witness was testifying truthfully);

Roberts, 618 F.2d at 533 (improper for prosecutor to tell the jury that police were monitoring

the trial to determine that the witness testified truthfully). Likewise, the prosecutor did not

“deliberately introduce[] into the case his personal opinion of the witnesses’ credibility,” as

the prosecutor did in Kerr, through comments such as, “I think he [the witness] was very

candid.” Kerr, 981 F.2d at 1053. 

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The impact of the prosecutor’s comments regarding Jones was also lessened by the

court’s instructions to the jury. Prior to the opening statements, the trial court offered

instructions on witness credibility: 

It is your job as jurors to decide the accuracy of each witness’ testimony. Take

into account such things as a witness’ ability and opportunity to observe, the

witness’ memory and manner while testifying, any motive or prejudice the

witness might have, and any inconsistent statements of the witness. Consider

each witness’ testimony in the light of all the evidence in this case. 

(R.T. 8/28/90, Volume 3A at 60.) The court also advised the jury about the limited purpose

of counsels’ opening statements: “What the lawyers say in their opening statements is not

evidence. It is simply an outline of what the lawyer thinks the evidence will be and is offered

to help you understand and follow the evidence during the trial.” (Id. at 63.) 

In its instructions at the close of the case, the court again explained that what the

lawyers say in their opening statements and closing arguments is not evidence. (RT 9/4/90

at 3.) The court then provided a set of factors for the jury to use in determining a witness’

credibility. (Id. at 4.) 

The Supreme Court has announced a set of principles which, when applied to the

prosecutor’s opening statement, militate against a finding that his remarks violated

Petitioner’s fair-trial rights. First, the jury is presumed to follow a court’s curative

instructions. See Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987); cf. Boyde, 494 U.S. at 384-

85 (“prosecutorial misrepresentations . . . are not to be judged as having the same force as an

instruction from the court”). The Supreme Court has also directed that “a court should not

lightly infer that a prosecutor intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.” DeChristoforo, 416 U.S. at 647; see Houston v.

Roe, 177 F.3d 901, 909 (9th Cir. 1999). This Court presumes, therefore, that the jury

followed the trial court’s instructions, imparted both at the beginning of the case and prior to

counsels’ closing arguments, that the statements made by the lawyers do not constitute

evidence and that the jury alone is responsible for determining the credibility of the witnesses.

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In addition to the court’s instructions on witness credibility and the nature of opening

statements, other aspects of the trial lessen the degree of prejudice the prosecutor’s comments

might have created. For example, defense counsel’s performance reduced the impact of the

prosecutor’s remarks about Jones’s testimony. Counsel vigorously and effectively crossexamined Jones (RT 8/29/90 at 50-63), and in her closing argument again attacked his

credibility (RT 9/4/90 at 35-38). These factors ameliorate the danger that the prosecutor’s

comments during his opening statement distracted the jury from making its own credibility

determination based upon Jones’s testimony and the rest of the evidence introduced at trial.

Finally, and most significantly, a review of the trial testimony supports a finding that

the prosecutor’s comments were neither improper nor prejudicial. As anticipated in the

prosecutor’s opening statement, Jones was a reluctant witness, unwilling or unable to testify

in conformity with the statement he had given to Detective Saldate. This development

resulted in a shift in significance away from Jones’s trial testimony toward that of Detective

Saldate, who testified regarding the version of events Jones had reported to him two days after

the killings. (RT 8/29/90 at 120-25). Taken together, the testimony of Saldate and Jones

acted to eliminate any potential prejudice arising from the prosecutor’s suggestion that if

Jones told the truth his testimony would implicate Petitioner. This is because, in contrast to

Petitioner’s claim that “the prosecutor suggested that he had other evidence of [Petitioner’s]

guilt that he might not necessarily share with the jury” (dkt. 51 at 5), the testimony of

Detective Saldate constituted the source of the information relied upon by the prosecutor to

support his belief that Jones, if he testified truthfully, could offer credible information

implicating Petitioner. Therefore, the prosecutor’s comments could not have led the jury to

convict Petitioner on evidence that was not presented; to the extent that the prosecutor’s

opening statement implied that he possessed additional information that would support

Jones’s testimony, that evidence came before the jury in the form of Saldate’s testimony. 

For the reasons set forth above, the Court concludes that the prosecutor did not violate

Petitioner’s due process rights by vouching for Jones’s credibility. The prosecutor’s

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comments did not so infect the trial as to render it fundamentally unfair or interfere with the

jury’s ability to judge the evidence fairly. Within the context of the entire trial, including the

court’s instructions, defense counsel’s performance, and the testimony of the witnesses, the

prosecutor’s comments during his opening statement were limited in scope and impact, and

Petitioner can demonstrate no prejudicial effect.

B. Comment regarding Hill’s testimony.

Background:

With respect to Hill, the prosecutor offered the following remarks in his opening

statement: 

Who else? Renee Hill is here. Renee Hill at one time was the girlfriend of

Michael Jones. Renee Hill currently lives in the Projects. She is on welfare, and

she is scared to death. She comes to Court today not voluntarily, but because

Detective House managed to go out and find her over the last 24 or 36 hours

and bring her to the Court. She is scared. Whether she should be or whether she

shouldn’t be, ladies and gentlemen, it doesn’t matter, because in her own mind

she is scared. She does not want to testify. She does not want to come into this

courtroom under any circumstances. Ladies and gentlemen, she will be brought

into this courtroom, and you will hear her testify.

(RT 8/28/90, Volume 3A at 67.) Petitioner did not object to this statement until after Hill

testified, at which point defense counsel moved for a mistrial, arguing that the combination

of Hill’s testimony and the prosecutor’s comments concerning Hill’s state of mind made it

impossible for Petitioner to receive a fair trial. (RT 8/29/90 at 10-12.) In denying the motion,

the trial court stated: 

[Hill’s] demeanor obviously indicated she did not want to be there. She was a

very reluctant witness. It was obvious she was under a great deal of stress and

anxiety and fear, and she never indicated that fear was coming from any

specific individual or defendant or anybody from his family. 

(Id. at 12.)

On direct appeal, the Arizona Supreme Court agreed with the trial court’s analysis.

King, 180 Ariz. at 277-78, 883 P.2d at 1033-34. The court further explained that:

[F]ar from being a matter that the jury is not justified in considering, Hill’s

unwillingness to testify goes directly to her credibility. As with Jones, the

prosecutor had no idea what Hill would say once she was on the stand. The

prosecutor rightly anticipated that he would have to provide the jury some

explanation for Hill’s eventual refusal to identify defendant.

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Hill testified that she called the police after seeing the surveillance

pictures broadcast on television. She admitted that she identified defendant as

the person in the picture. When asked whether defendant was the person

depicted in the surveillance photograph, however, she repeatedly stated that the

person in the picture did not look like defendant. Her fear and anxiety over

testifying certainly served to bolster her earlier identifications over her trial

testimony. Thus, we conclude that the state did not err either in eliciting

testimony concerning Hill’s reluctance to testify or in preparing the jury for the

possibility that Hill was going to be a reluctant witness.

Id. (citations omitted). 

Analysis:

Petitioner asserts that the prosecutor’s comments implied that Petitioner had threatened

Hill and that she was frightened to testify against him; as a result, Petitioner contends, “he was

denied his rights to the presumption of innocence, due process, a fair trial and a reliable

sentencing determination.” (Dkt. 51 at 5-6.) The Court disagrees.

The trial court and the Arizona Supreme Court accurately characterized the purpose

and the effect of the prosecutor’s comments regarding Hill’s testimony. King, 180 Ariz. at

277-78, 883 P.2d at 1033-34. Moreover, as occurred with respect to the prosecutor’s

description of Jones’s prospective testimony, Hill’s testimony bore out and clarified the

prosecutor’s remarks about Hill’s reluctance to testify, thereby reducing any potential

prejudice resulting from the comments.

Petitioner has cited no authority that supports his claim that he is entitled to habeas

relief under the AEDPA based upon the prosecutor’s comments regarding Hill’s testimony.

The cases relied on by Petitioner involved misconduct far more egregious than that engaged

in by the prosecutor in his opening statement. In Hall v. United States, 419 F.2d 582 (5th Cir.

1969), for example, a case decided on direct appeal, the Fifth Circuit reversed a conviction

based on a wide variety of “improper and prejudicial remarks” made by the prosecution in its

closing arguments. Among the “five areas” of “reversible remarks” was the prosecutor’s

assertion that the defendant had tampered with a witness and that the witness was so

frightened of the defendant that he had experienced a “fit” and been hospitalized. Id. at 584.

Characterizing this commentary as a “bald assertion of fact not in evidence” and an “inference

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4 In support of Claim 3, Petitioner also cites a number of state court cases,

including Arthur v. State, 575 So.2d 1165 (Ala. Cr. App. 1990); People v. Weiss, 50 Cal.2d

535, 327 P.2d 527 (1958); Morgan v. Commonwealth, 283 Ky. 588, 142 S.W.2d 123 (1940);

and Duke v. State, 106 Fla. 205, 142 So. 886 (1932). These cases, which address the

improper admission of evidence, do not constitute, or even contain references to, the clearly

established federal law governing Petitioner’s prosecutorial misconduct claim at the time his

conviction became final.

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. . . that could not be drawn from what meager facts were in evidence,” the Court of Appeals

explained that:

The highly inflammatory nature of the remarks is obvious. They charged a

separate, and a serious, criminal offense. They went to the integrity of the trial

itself. And they were pursued and re-pursued after objection and admonition

from the court. Where there are remarks such as here made the court should, as

a minimum, sustain an objection and immediately and clearly instruct the jury

that the argument is not supported by evidence.

Id. at 585. The prosecutor’s comments about Hill and her prospective testimony did not

approach this level of impropriety or prejudice. 

The other federal cases cited by Petitioner are equally unpersuasive.4

 In United States

v. Modica, 663 F.2d 1173 (2d Cir. 1981) (per curiam), and United States v. Polizzi, 801 F.2d

1543 (9th Cir. 1986), the courts affirmed convictions on direct appeal over the defendants’

claims of prosecutorial misconduct. In Modica, the prosecutor, during his closing argument,

explicitly vouched for a witness’s credibility and on several occasions characterized that

witness, and other government witnesses, as “scared” to testify against the defendant. 663

F.2d at 1179. The prosecutor also referred to a “mysterious third person” who had been seen

with the defendant as the source of the witnesses’s fear. Id. The Second Circuit found that,

while the prosecutor’s remarks during closing argument were improper, the defendant was not

deprived of a fair trial. Id. at 1182. In Polizzi, the prosecutor suggested during his closing

argument that a relative of the defendant posed a threat to the witness. 801 F.2d at 1557-58.

The trial court sustained the defendant’s objection and instructed the jury to disregard the

comment. Id. at 1558. The Ninth Circuit found that the comment was improper because there

was no evidence that the relative had ever threatened any witnesses. Id. The court held,

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5 In Darden, the prosecutor called the defendant an “animal,” stated “I wish I

could see [the defendant] sitting here with no face, blown away by a shotgun,” and told the

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however, that the prosecutor’s misconduct, which included a number of other inappropriate

remarks, was harmless. Id. at 1558-59. 

By contrast with these cases, the prosecutor’s remarks did not distort the evidence but

accurately anticipated and addressed Hill’s reluctance to testify. The comments did not

identify Petitioner, or a threat from any individual, as the source of Hill’s fear. Therefore,

they did not so infect the trial as to render it unfair or interfere with the jury’s ability to judge

the evidence.

C. Conclusion.

A review of the clearly established federal law discussed above demonstrates that

Petitioner has failed to show that the prosecutor’s opening statement “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” DeChristoforo, 416

U.S. at 43. The contested statements constituted isolated events occurring at the beginning

of the trial, and as the trial progressed the concerns implicated by the comments – specifically,

the credibility of witnesses – were addressed in the court’s instructions, challenged by defense

counsel, and placed into proper context by the nature of the testimony itself. The prosecutor’s

opening statement “did not manipulate or misstate the evidence, nor did it implicate other

specific rights of the accused such as the right to counsel or the right to remain silent.”

Darden, 477 U.S. at 182. Moreover, the evidence of Petitioner’s guilt was substantial; it

included not only the testimony of Jones and Hill but the first-hand observations of several

other witnesses and videotaped images of the shooting inside the store. 

Finally, the prosecutor’s statements were significantly more circumspect, and therefore

less likely to cause prejudice, than other statements that have been held by the United States

Supreme Court not to violate due process, including those made by the prosecutor in Darden,

whose closing argument “deserve[d] the condemnation it has received from every court to

review it” but nonetheless did not deprive the defendant of a fair trial.5

 477 U.S. at 181-82.

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jury that imposing the death penalty was the only way to protect society from future crimes.

Id. at 180.

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Compare Young, 470 U.S. at 1047 (prosecutor’s remarks vouching for the defendant’s guilt

and urging the jury to “do its job” were erroneous but did not require reversal of the

conviction); DeChristoforo, 416 U.S. at 645 (prosecutor’s remark, in reference to defendant

and his counsel, “I quite frankly think that they hope that you find him guilty of something

a little less than first-degree murder,” was ambiguous and, in view of a curative instruction,

did not deny the defendant due process); and Lawn, 355 U.S. at 359 n.15 (comment during

closing argument that “we vouch for [the witnesses] because we think they are telling the

truth” did not deprive the defendant of a fair trial), with Berger, 295 U.S. at 85-89

(prosecutor’s closing argument was “undignified and intemperate, containing improper

insinuations and assertions calculated to mislead the jury” and prejudiced the defendant where

the case against him was weak).

The decision of the Arizona Supreme Court rejecting Petitioner’s challenge to the

prosecutor’s opening statement was neither contrary to, nor an unreasonable application of,

clearly established federal law. Petitioner is not entitled to relief on Claim 3.

Claim 5: Confrontation Clause violation.

Petitioner alleges that the trial court violated his Sixth Amendment rights by admitting

the testimony of Detective Saldate to impeach Jones without allowing Petitioner to confront

Detective Saldate or Jones. (Dkt. 51 at 9-12.)

At issue is a statement Jones made to Phoenix Police Department Detective Armando

Saldate two days after the murders. Saldate interviewed Jones at around 1:45 a.m. on

December 29, 1989. (RT 8/29/90 at 115.) During the interview, Jones told Detective Saldate

that Petitioner had killed the clerk and the security guard. (Id. at 120.) Jones explained that

he and Petitioner had gone to the Short Stop together, that Petitioner had entered the store

alone, that Jones heard shots coming from inside the shop, and that Petitioner then exited the

store holding a chrome pistol. (Id. at 122-23.) 

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Before Jones testified, defense counsel requested a ruling on the admissibility of

Jones’s statements to Detective Saldate. (Id. at 8-10.) The trial court delayed its final ruling

until it heard the testimony of Jones and Saldate, at which point it concluded that Jones was

feigning memory loss regarding his statement to Saldate and ruled that the statement was

admissible both as a recorded recollection under Arizona Rule of Evidence 803(5) and as a

prior inconsistent statement under Rule 801(d)(1). (Id. at 118-19.) 

Petitioner contends that the trial court violated his Confrontation Clause rights by

admitting the statement as a recorded recollection without allowing Petitioner to confront

Detective Saldate on the question of whether Jones had adopted the statement as truthful as

required by Rule 803(5). (Dkt. 51 at 10; see Dkt. 26 at 2.) This assertion ignores the fact that

the trial court ruled that the testimony was admissible on alternative grounds under Rule

801(d)(1). Moreover, as a challenge to the state court’s evidentiary ruling, the argument does

not present a cognizable federal claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

To the extent that Petitioner does allege a violation of the federal constitution, it is

alluded to in his argument that “he could not put Jones on the stand and confront him, because

Jones’s testimony was that he did not remember what was said . . . .” (Dkt. 51 at 12.) The

Arizona Supreme Court rejected this claim, holding that admission of the statement did not

violate Petitioner’s Confrontation Clause rights. King, 180 Ariz. at 276, 883 P.2d at 1032.

The court explained:

In this case, the hearsay declarant, Jones, testified at trial and was

subjected to unrestricted cross-examination. And, the fact that Jones testified

that he could no longer remember certain details of the crime, even assuming

his claim were true, does not result in a violation of the confrontation clause.

Defendant’s opportunity to cross-examine Jones before a jury satisfies the

requirements of the confrontation clause.

Id. (citing United States v. Owens, 484 U.S. 554, 559 (1988)).

 In making its decision and citing Owens, the Arizona Supreme Court correctly

identified and applied the relevant federal law; therefore, the “contrary to” clause of §

2254(d)(1) is not applicable. See Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000)

(citing Williams, 529 U.S. at 404). Instead, this Court must determine whether the Arizona

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Supreme Court’s application of Owens to the facts of this case was “objectively

unreasonable.” See Visciotti, 537 U.S. at 25.

In Owens, the Supreme Court held that an assault victim’s out-of-court identification

of the defendant was admissible even though the victim suffered from memory loss and

testified on cross-examination that he could no longer remember seeing his assailant. 484

U.S. at 564. The Court explained:

The Confrontation Clause guarantees only “an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” It is sufficient that the defendant has

the opportunity to bring out such matters as the witness’ bias, his lack of care

and attentiveness, his poor eyesight, and even (what is often a prime objective

of cross-examination) the very fact that he has a bad memory.

Id. at 559 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)) (additional quotations and

citations omitted). The Confrontation Clause was not violated, the Court held, because the

declarant took the stand and was “subject to unrestricted cross-examination.” Id. at 560.

The Ninth Circuit has applied the AEDPA’s deferential standard of review and the

holding in Owens to a factual situation similar to that presented by Petitioner’s claim. In Felix

v. Mayle, 379 F.3d 612, 617-18 (9th Cir. 2004), reversed in part on other grounds, Mayle v.

Felix, 125 S.Ct. 2562 (2005), the Court of Appeals denied the petitioner’s claim that his

Confrontation Clause rights were violated by the introduction of a videotaped interview given

by a key prosecution witness. The trial court had admitted the tape despite the fact that the

witness claimed he could no longer remember the interview – albeit under “circumstances

[that] indicated strongly that the witness’ loss of memory was feigned.” Id. at 617. The Ninth

Circuit found that the petitioner failed to show that the state court’s ruling was contrary to,

or involved an unreasonable application of, clearly established federal law under § 2254(d)(1).

The court noted: 

The Supreme Court has held that the Confrontation Clause of the Sixth

Amendment is not violated by the admission of a prior identification by a

witness who is unable, because of memory loss, to testify concerning the basis

for the identification. Although Owens did not address the question of a witness

who feigned memory loss, no other Supreme Court decision has addressed that

point either. The state court’s decision that the admission of a videotaped

statement of a witness who is unable, because of feigned memory loss, to testify

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concerning the basis for the statement is not contrary to nor an unreasonable

application of Owens, nor of any other Supreme Court case.

Id. at 617-18 (citation omitted). The court further observed, again citing Owens, that the

petitioner was free to cross-examine the witness and challenge his credibility. Id. at 618.

Like the hearsay declarants in Owens and Felix, Jones took the stand at Petitioner’s

trial. After testifying on direct examination that his recollection of his interview with Saldate

was limited, he was “subjected to unrestricted cross-examination.” King,180 Ariz. at 276, 883

P.2d at 1032. The Arizona Supreme Court held that this process did not violate Petitioner’s

Confrontation Clause rights under Owens. Id. Because the decision of the Arizona Supreme

Court did not involve an unreasonable application of clearly established federal law, Petitioner

is not entitled to relief on Claim 5.

Claim 8: Multiple-homicides aggravating factor violates double jeopardy.

Petitioner challenges the constitutionality of the trial court’s determination regarding

the presence of the aggravating circumstance set forth in § 13-703(F)(8). (Dkt. 51 at 12-13.)

Section (F)(8) provides that the court shall consider as an aggravating circumstance the fact

that “[t]he defendant has been convicted of one or more other homicides, as defined in

§ 13-1101, which were committed during the commission of the offense.” The trial court

found that factor (F)(8) had been proven and that it was “an aggravating factor that supports

the imposition of the death penalty on either count one or count two.” (ROA 165d.) In

summarizing its findings, the court noted that “the State has proven beyond a reasonable

doubt the presence of the aggravating circumstances specified by A.R.S. section 13-703(F)(5),

(F)(6) and (F)(8).” (ROA 165h.) 

On direct appeal, the Arizona Supreme Court summarily rejected Petitioner’s claim

that application of the (F)(8) factor constituted a double jeopardy violation. King,180 Ariz.

at 273, 287, 883 P.2d at 1029, 1043 (citing State v. Greenway, 170 Ariz. 155, 167-68, 823

P.2d 22, 34-35 (1991), and State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994)).

In his merits brief, Petitioner appears to make two arguments. First, he contends that

his constitutional rights were violated because the court “failed to specify to which count the

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6 To support his double-jeopardy claim, Petitioner cites Arizona v. Rumsey, 467

U.S. 203 (1984); “Grady” (presumably Grady v. Corbin, 495 U.S. 508 (1990)); and Furman

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multiple homicide factor applied,” and that this “ambiguous judgment . . . constitutes a

freakish and arbitrary imposition of the death penalty.” (Dkt. 51 at 13.) The Court rejects this

argument because it is clear that the trial court found that the (F)(8) factor existed with respect

to each conviction and applied the factor to both sentences. (See ROA 165g-165i.) 

Petitioner also asserts that applying the factor to each of the murder convictions

constitutes double jeopardy. (Id.) The Double Jeopardy Clause of the Fifth Amendment

provides that no person shall “be subject for the same offense to be twice put in jeopardy of

life or limb.” The Supreme Court has observed that the Clause consists of several protections:

“It protects against a second prosecution for the same offense after acquittal. It protects

against a second prosecution for the same offense after conviction. And it protects against

multiple punishments for the same offense.” United States v. DiFrancesco, 449 U.S. 117,

129 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). None of these

protections are implicated by the application of the (F)(8) aggravating factor to each of

Petitioner’s murder convictions. 

As the Supreme Court explained in Poland v. Arizona, 476 U.S. 147, 156 (1986),

“Aggravating circumstances are not separate penalties or offenses . . . .” Petitioner is not

being punished twice for the same crime. His sentences were based on the murders of two

different victims. There are two convictions and two sentences. Aggravating circumstances,

such as that set forth in (F)(8), only determine whether the crime of murder will carry the

death penalty. See Lowenfield v. Phelps, 484 U.S. 231 (1988) (explaining that statutory

aggravating circumstances are not offenses for double-jeopardy purposes, but rather are

“procedural standards designed to control a jury’s discretion in capital cases in order to ensure

against capricious and arbitrary enforcement of the death penalty”). There is no Supreme

Court precedent rejecting the use of multiple homicides as an aggravating factor, on doublejeopardy or any other grounds.6

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v. Georgia, 408 U.S. 238 (1972). These cases do not address the constitutional validity of

the multiple-homicides aggravating factor and offer no support for Petitioner’s claim. 

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The Arizona Supreme Court’s ruling denying Petitioner’s challenge to the (F)(8)

aggravating factor was neither contrary to, nor an unreasonable application of, clearly

established federal law. Therefore, Petitioner is not entitled to relief on Claim 8.

Claim 11: Unconstitutionality of the Arizona death penalty statute.

Petitioner claims that the Arizona death penalty statute violates the Eighth Amendment

because it fails to channel the sentencer’s discretion. (Dkt. 51 at 13-15.) The Arizona

Supreme Court summarily denied this claim on direct appeal. King, 180 Ariz. at 274, 883

P.2d at 1030. 

In Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court held the

death penalty statutes of Georgia and Texas to be unconstitutional because they allowed

arbitrary and unguided imposition of capital punishment. Furman caused many states to enact

new capital statutes. A number of these statutes survived the Court’s further scrutiny in Gregg

v. Georgia, 428 U.S. 153 (1976). Observing that the death penalty is “unique in its severity

and irrevocability,” id. at 187, the Gregg Court concluded that a death sentence may not be

imposed unless the sentencing authority focuses its attention “on the particularized nature of

the crime and the particularized characteristics of the individual defendant.” Id. at 206. In

imposing the death sentence, the sentencer must find the presence of at least one aggravating

factor and then weigh that factor against the evidence of mitigating factors. Id. The Court

refined these general requirements in Zant v. Stephens, 462 U.S. 862, 877 (1983), holding that

a constitutionally valid capital sentencing scheme must “genuinely narrow the class of persons

eligible for the death penalty and must reasonably justify the imposition of a more severe

sentence on the defendant compared to others found guilty of murder.” A death penalty

scheme must provide an “objective, evenhanded and substantively rational way” for

determining whether a defendant is eligible for the death penalty. Zant, 462 U.S. at 879.

In addition to the requirements for determining eligibility for the death penalty, the

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Court has imposed a separate requirement for the selection decision, “where the sentencer

determines whether a defendant eligible for the death penalty should in fact receive that

sentence.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). “What is important at the

selection stage is an individualized determination on the basis of the character of the

individual and the circumstances of the crime.” Zant, 462 U.S. at 879. Accordingly, a statute

that “provides for categorical narrowing at the definition stage, and for individualized

determination and appellate review at the selection stage” will ordinarily satisfy Eighth

Amendment and Due Process concerns, id., so long as a state ensures “that the process is

neutral and principled so as to guard against bias or caprice.” Tuilaepa, 512 U.S. at 973.

Defining specific “aggravating circumstances” is the accepted “means of genuinely

narrowing the class of death-eligible persons and thereby channeling the [sentencing

authority’s] discretion.” Lowenfield, 484 U.S. at 244. Each defined circumstance must meet

two requirements. First, “the [aggravating] circumstance may not apply to every defendant

convicted of a murder; it must apply only to a subclass of defendants convicted of murder.”

Tuilaepa, 512 U.S. at 972; see Arave v. Creech, 507 U.S. 463, 474 (1993). Second, “the

aggravating circumstance may not be unconstitutionally vague.” Tuilaepa, 512 U.S. at 972;

see Arave, 507 U.S. at 473; Godfrey v. Georgia, 446 U.S. 420, 428 (1980).

Arizona’s death penalty scheme allows only certain, statutorily defined, aggravating

circumstances to be considered in determining eligibility for the death penalty. A.R.S. § 13-

703(F). “The presence of aggravating circumstances serves the purpose of limiting the class

of death-eligible defendants, and the Eighth Amendment does not require that these

aggravating circumstances be further refined or weighed by [the sentencer].” Blystone v.

Pennsylvania, 494 U.S. 299, 306-07 (1990). Not only does Arizona’s sentencing scheme

generally narrow the class of death-eligible persons, §§ 13-703(F)(5), (6), and (8) do so

specifically. In Petitioner’s case, the sentencing court found that these aggravating

circumstances had been proven. (ROA 165c-165d, 165h.) The Arizona Supreme Court

independently reviewed these findings; it rejected the (F)(6) factor, reweighed the remaining

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7 Accordingly, the supreme court did not conduct a proportionality review in this

case. King, 180 Ariz. at 273, 883 P.2d at 1029. 

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aggravating and mitigating circumstances, and affirmed the death sentences. King, 180 Ariz.

at 289, 883 P.2d at 1045. 

Petitioner’s claim is meritless. Rulings of the Ninth Circuit and the United States

Supreme Court have upheld Arizona’s death penalty statute against challenges that particular

aggravating factors, including (F)(5) and (F)(6), do not adequately narrow the sentencer’s

discretion. See Lewis v. Jeffers, 497 U.S. 764, 774-77 (1990); Walton v. Arizona, 497 U.S.

639, 649-56 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002);

Woratzeck v. Stewart, 97 F.3d 329, 335 (9th Cir. 1996). The Ninth Circuit has also explicitly

rejected the argument that Arizona’s death penalty statute is unconstitutional because it “does

not properly narrow the class of death penalty recipients.” Smith v. Stewart, 140 F.3d 1263,

1272 (9th Cir. 1998).

Petitioner’s merits brief also alludes to a lack of “meaningful proportionality review”

in Arizona death penalty cases. (Dkt. 51 at 15.) There is no federal right to proportionality

review where such review is not provided for by state law. Pulley v. Harris, 465 U.S. 37, 43-

45 (1984). In State v. Salazar, 173 Ariz. 399, 416-417, 844 P.2d 566, 583-584 (1992), cert.

denied, 509 U.S. 912 (1993), the Arizona Supreme Court held that it would no longer conduct

proportionality review in death penalty cases.7

 Therefore, Petitioner had no constitutional

right to proportionality review by the Arizona Supreme Court. See Smith, 140 F.3d at 1272

(rejecting the argument that “Arizona’s proportionality review (or lack thereof) is improper”).

The Arizona Supreme Court’s rejection of Petitioner’s challenge to the narrowing

features of Arizona’s death penalty statute was neither contrary to, nor an unreasonable

application of, clearly established federal law. Therefore, Petitioner is not entitled to relief

on Claim 11.

Claim 13: Ineffective assistance of trial counsel.

In his second amended petition, Petitioner alleged ineffective assistance of counsel

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8 As Respondents note, Petitioner’s merits brief evinces “considerable confusion

concerning the sub-claims under Claim 13.” (Dkt. 53 at 1.) For example, Petitioner

discusses issues related to a tainted juror, failure to investigate, inadequate crossexamination, and cumulative ineffectiveness, which were not included in his habeas petition.

(Dkt. 51 at 20-22.) The exhausted claims alleged in the petition are addressed above.

Petitioner failed to raise the other issues, as required by Rule 2(c) of the Rules Governing

Habeas Cases; therefore, they are not properly before this Court. See Felix, 125 S. Ct. at

2573 (citing Rule 2(c), which instructs Petitioner to “specify all grounds of relief available”

and to “state the facts supporting each ground”); Cacoperdo v. Demosthenes, 37 F.3d 504,

507 (9th Cir. 1994) (indicating that the only habeas claims a district court will consider are

those contained in the habeas petition itself or those raised in an amended petition or

statement of additional claims).

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(“IAC”) on four separate grounds. (Dkt. 26 at 8.) This Court found that three of the claims

were exhausted and would be reviewed on the merits. Specifically, that trial counsel:

(A) refused to present Petitioner’s alibi or alibi witness; (B) moved to withdraw the day before

trial because she believed Petitioner’s sister had stolen from her; and (C) failed to develop and

present all available mitigating evidence and failed to identify, locate, and investigate

potential mitigation witnesses.8

 (Dkt. 46 at 17-18.)

Petitioner presented these claims in his PCR petition. (ROA-PCR 287 at 31-35.) The

court denied all of Petitioner’s IAC claims for failure to state a cognizable claim. (ROA-PCR

299.) Because the PCR court did not provide a rationale for its decision, this Court performs

an independent review of the record to determine whether the state court decision was

objectively unreasonable under controlling federal law. Delgado II, 223 F.3d at 981-82. For

the reasons set forth below, the Court concludes that the PCR court’s decision denying

Petitioner’s IAC claims was not objectively unreasonable. 

As previously discussed, when a state court has addressed the merits of a petitioner’s

claim of federal constitutional error, a federal court may grant habeas relief only if the state

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

established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1); see Yarborough v. Gentry, 540 U.S. 1 (2003); Visciotti, 537 U.S. at 19. For a

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claim alleging ineffective assistance of counsel, the applicable law is set forth in Strickland

v. Washington, 466 U.S. 668 (1984). 

To prevail under Strickland, a petitioner must show that counsel’s representation fell

below an objective standard of reasonableness and that the deficiency prejudiced the defense.

466 U.S. at 687-88. The inquiry under Strickland is highly deferential, and “every effort

[must] be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. To prove deficient performance, a defendant must also

overcome “the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. To demonstrate prejudice, a petitioner “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.” Id. at 694. 

Furthermore, under the AEDPA, the state court’s decision is subject to another level

of deference. Bell v. Cone, 535 U.S. 685, 698-99 (2002). Therefore, in order to merit habeas

relief, Petitioner must make the additional showing that the PCR court’s ruling that counsel

was not ineffective constituted an unreasonable application of Strickland. 28 U.S.C.

§ 2254(d)(1).

A. Trial counsel refused to present Petitioner’s alibi or alibi witness.

On January 4, 1990, Petitioner was indicted on two counts of first-degree murder and

one count of armed robbery. (ROA 3.) On January 25, 1990, Petitioner’s court-appointed

counsel, Roland Steinle, III, of the Maricopa County Public Defender’s Office, filed a notice

listing five defenses, including the defense of alibi. (ROA 14.) On February 20, 1990, Mr.

Steinle filed a motion to determine conflict of interest, noting that his office may have

represented three potential trial witnesses in a number of other criminal matters. (ROA 21.)

On March 8, 1990, the court permitted the Public Defender’s Office to withdraw and

appointed Mary Wisdom, from the private bar, to represent Petitioner. (M.E. 3/8/90.) Ms.

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9 The record includes letters written to the trial court by Petitioner (ROA 152)

and Petitioner’s mother (ROA 166o1) after his conviction and prior to sentencing; each

features protestations of Petitioner’s innocence, but neither includes a claim that Petitioner

was with his mother at the time of the murders.

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Wisdom represented Petitioner through the guilt stage of the trial. She did not present an alibi

defense, but argued that reasonable doubt existed as to whether Petitioner was the individual

who shot the clerk and the security guard. (See RT 9/4/90 at 27-41.) The centerpiece of this

argument was Ms. Wisdom’s attack on the credibility of the State’s key witnesses, Jones and

Hill. In Claim 13(A), Petitioner alleges that he “had an alibi defense in that his mother would

have testified that he was at home with her that evening,” and that Ms. Wisdom’s failure to

present such a defense “offends basic notions of minimal competence of representation.”

(Dkt. 51 at 16.) The Court disagrees.

As Respondents correctly observe, Petitioner “has not identified where in the record

is the information that Wisdom knew that his mother was available as an alibi witness.” (Dkt.

53 at 23.) In fact, the claim that Petitioner’s mother could have served as an alibi witness

arises for the first time in Petitioner’s merits brief. (Dkt. 51 at 16.) Petitioner did not identify

his alibi witness in the notice of defenses filed by Mr. Steinle (ROA 14), in any of his PCR

filings (see ROA-PCR 287 at 17, 296 at 8, 308 at 7-8), or in his second amended petition for

habeas corpus, where the claim reads, in its entirety, “Mr King provided his trial counsel with

an alibi and alibi witnesses, but trial counsel refused to use it” (dkt. 26 at 8). The continuing

absence of any details regarding the nature of Petitioner’s alibi is particularly noteworthy, not

only because such information would be central to any court’s assessment of Petitioner’s IAC

claim under both prongs of Strickland, but because Petitioner failed to put forward any

specifics despite the State’s response to his PCR petition, which noted, “Nothing in the record

of the trial or post-trial proceedings indicates that there ever was a viable alibi defense or that

Wisdom was ineffective for not adopting it.”9

 (ROA-PCR 292 at 10.) Despite being put on

notice of this deficiency, Petitioner failed to offer any support for this aspect of his IAC claim

until he placed a passing reference to his mother as the alibi witness in his merits brief.

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10 In his second amended petition, Petitioner stated this claim as one of

ineffectiveness of counsel (dkt. 26 at 8), which is how the claim was exhausted in state court.

To the extent that Petitioner now attempts to raise a conflict-of-interest claim and/or a claim

based upon the validity of his waiver of such conflict, the claims are not exhausted and are

not properly before this Court.

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 Petitioner’s allegations fail to establish that he is entitled to relief. The record is simply

bereft of any factual support for the claim that Ms. Wisdom could have presented an alibi

defense, let alone that her failure to do so, and to pursue instead an argument based upon

reasonable doubt, constituted ineffective assistance. Given the “facts of the particular case,”

Strickland, 466 U.S. at 690, which included substantial evidence placing Petitioner at the

scene of the robbery and murders, even if Petitioner had indicated the existence of an alibi

witness, this Court cannot conclude that it was unreasonable for Ms. Wisdom to decide not

to present such a defense but to focus instead on the credibility of the State’s key witnesses.

Therefore, with respect to Ms. Wisdom’s decision not to present an alibi defense, Petitioner

has satisfied neither the Strickland test, with its presumption that counsel’s actions were

strategically sound, nor the deferential standard of § 2254(d)(1).

After an independent review of the record, this Court concludes that the decision of the

PCR court denying this claim was not objectively unreasonable. Therefore, Petitioner is not

entitled to relief on Claim 13(A).

B. Counsel moved to withdraw the day before trial.

Petitioner alleges that he was denied effective assistance of counsel because on the first

day of the trial Ms. Wisdom, citing a potential conflict of interest based upon her belief that

Petitioner’s sister had stolen money from her, moved to withdraw as counsel. (Dkt. 26 at 8.)

According to Petitioner, this placed him “in the untenable position of waiving the conflict or

asking for a continuance to permit a new lawyer to come in and take over the case.”10 (Id.)

Prior to jury selection, Ms. Wisdom raised concerns with the court about a potential

conflict of interest arising from her belief that Petitioner’s sister had stolen money from her

purse during a witness interview. (RT 8/27/90 at 2-8.) Ms. Wisdom explained to the court,

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11 The case relied upon by Petitioner, King v. Strickland, 714 F.2d 1481 (11th

Cir. 1983), involving comments defense counsel made about his client during his closing

argument before the jury, is readily distinguishable.

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however, that she did not think that the incident “affected my ability to represent Mr. King.”

(Id. at 5; see ROA-PCR 287, App. F at 2.) Nevertheless, in response to the incident the court

appointed an attorney who independently consulted with Petitioner (id. at 2-3), after which

Petitioner waived any conflict and indicated that, “I want Miss Wisdom to represent me, yes”

(id. at 7). 

The Court has thoroughly reviewed Petitioner’s merits brief in an attempt to ascertain

the basis of his claim that the scenario described above constituted IAC. The only argument

Petitioner offers, which is raised for the first time in the merits brief, is the contention that,

“It constitutes ineffective assistance of counsel for counsel to separate himself from his client,

conveying to the jury that he reluctantly represents his client.” (Dkt. 51 at 16.) This argument

is without merit; there is no evidence that Ms. Wisdom conveyed to the jury any reluctance

to represent Petitioner.11

With respect to Ms. Wisdom’s request to withdraw from representing Petitioner prior

to trial, Petitioner has satisfied neither the Strickland test nor the deferential standard of

§ 2254(d)(1). Having completed an independent review of the record, the Court finds that the

decision of the PCR court denying this claim was not objectively unreasonable. Petitioner is

not entitled to relief on Claim 13(B).

C. Counsel failed to develop and present mitigation evidence.

Petitioner contends that Ms. Wisdom and Mr. Steinle failed to prepare an adequate

mitigation case and failed to identify, locate, and investigate potential mitigation witnesses.

Specifically, according to Petitioner, counsel did not perform an “in-depth investigation into

all aspects of [Petitioner’s] life to develop a social and medical history for him.” (Dkt. 51 at

19.) 

Background:

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On October 3, 1990, Ms. Wisdom moved for funding for a mental health examination

of Petitioner (ROA 145); the trial court granted the motion (ROA 146). Ms. Wisdom also

moved for an order requiring disclosure of the psychiatric records of Petitioner’s father from

the Arizona State Hospital (ROA 147a-147b); again, the court granted the motion (ROA

147c). Earlier in the case, Ms. Wisdom had moved for orders disclosing Petitioner’s school

records (ROA 43) and prison file (ROA 45). According to Ms. Wisdom, in “preparation for

mitigation,” she also interviewed “several family members.” (ROA-PCR 287, App. F at 2.)

On October 22, 1990, after Petitioner had been convicted but prior to sentencing, Ms.

Wisdom filed a motion to determine counsel. (ROA 149.) The motion was prompted by

Petitioner’s accusation that Ms. Wisdom had conspired with the prosecution to convict him

because of his race. (Id.) At a hearing on Ms. Wisdom’s motion, Petitioner indicated

unambiguously that he was dissatisfied with Ms. Wisdom’s performance and that he wanted

new counsel. (See RT 10/30/90 at 3.) Petitioner also confirmed the sentiment expressed in

his letter to the court (ROA 152), that Ms. Wisdom’s racial prejudice was part of the

conspiracy that resulted in his conviction. (RT 10/30/90 at 7.) Given Petitioner’s attitude,

Ms. Wisdom expressed concern that she would be unable to represent Petitioner effectively

during sentencing because Petitioner “will not cooperate with me in what evidence we ought

to present to the court in mitigation.” (Id. at 6.) She also indicated that the potential conflict

of interest that caused Mr. Steinle to withdraw no longer existed because none of the

witnesses his office represented were called at trial. (Id. at 2.) The court permitted Ms.

Wisdom to withdraw, citing “the deterioration of the attorney/client relationship . . . and the

fact that Miss [sic] Wisdom will no longer be able to effectively represent Mr. King,” and reappointed the Public Defender’s Office. (RT 10/30/90 at 8.) 

The court held a status conference on November 7, 1990, at which Mr. Steinle was

appointed to replace Ms. Wisdom. (RT 11/7/90.) Mr. Steinle expressed his concern about

resuming representation after another attorney had represented Petitioner during the guilt

stage of the trial; he requested and was granted a continuance of the sentencing hearing. (RT

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12 According to the presentence investigation, this psychological report, dating

from 1983, “did not identify any specific problem areas for counselor intervention at this

time.” (ROA 166f at 6.) The report “indicate[d] no severe depression or signs of gross

psychotic pathology.” (Id.) The data described only a “‘neurotic debility,’ with a low level

chronic prognosis.” (Id.) The report also indicated that Petitioner possessed an IQ of 99,

placing him in the average range. (Id.)

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11/7/90 at 24.) Petitioner indicated that he wanted Mr. Steinle to represent him, and waived

any conflict of interest with the Public Defender’s Office. (Id. at 12-13, 15-16, 21.) At

another status conference, on January 4, 1991, Mr. Steinle indicated that a date of February

12, 1991, would be appropriate for the sentencing hearing; the court scheduled the hearing for

February 15. (RT 1/4/91 at 2-3.) 

The sentencing hearing took place on March 1, 1991, approximately four months after

Mr. Steinle was reappointed. (RT 3/1/91.) The State called one witness, a fingerprint expert

who matched Petitioner’s thumb print with the print contained in the records from Petitioner’s

prior conviction for kidnapping and sexual assault. (Id. at 8-10.) Mr. Steinle presented the

testimony of Mickey McMahon, the psychologist retained by defense counsel. (Id. at 12-49.)

Dr. McMahon had examined Petitioner and prepared a report. (ROA-PCR 292,

Attachment 3.) He performed a clinical interview of Petitioner and conducted a variety of

psychological tests, including the MMPI, the Rorschach inkblot test, and the Williams

Sentence Completion Test. (Id. at 4.) Dr. McMahon interviewed family members, including

Petitioner’s mother and brother, and “provided their family history.” (RT 3/1/91 at 58.) Dr.

McMahon included this information in his report and discussed it in his testimony. (ROAPCR 292, Attachment 3 at 1-3; see RT 3/1/91 at 19-24.) He also reviewed a number of

records, including the presentence investigations for this case and for Petitioner’s prior

conviction; the Arizona State Hospital records of Petitioner’s father; and a “computerized

psychological report” from the Arizona Department of Corrections.12 (ROA-PCR 292,

Attachment 3.)

At the presentencing hearing, Dr. McMahon testified that Petitioner had experienced

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13 The court rejected counsel’s argument that remorse and the risk of future

criminal conduct constituted nonstatutory mitigation factors. (ROA 165f-165g.)

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events in his childhood, including his parents’ divorce, the death of his father, and incidents

of domestic violence involving his mother and her live-in boyfriend, that caused him to suffer

from post-traumatic stress disorder. (See RT 1/4/91 at 15-29.) Dr. McMahon’s evaluation

of Petitioner also included diagnoses of anti-social personality and mixed substance abuse.

(ROA-PCR 292, Attachment 3 at 6.) 

In support of his sentencing arguments, Mr. Steinle filed a 21-page memorandum,

which focused on mitigating circumstances, including Petitioner’s troubled family history and

Dr. McMahon’s diagnosis of Petitioner’s psychological condition. (ROA 163.) Mr. Steinle

also filed a 16-page response to the State’s sentencing memorandum raising constitutional

challenges to Arizona’s death penalty statute. (ROA 164.)

In sentencing Petitioner, the trial court found that the State had proven three

aggravating factors. (ROA 165c-165d, 165h.) The court also found that Petitioner had

proven a number of nonstatutory mitigating circumstances: that he had a troubled childhood

and came from a dysfunctional family; that he suffered from a substance abuse problem, posttraumatic stress disorder, and an anti-social personality disorder; and that his family loved

him.13 (ROA 165d-165g, 165h.) The court concluded, however, that these mitigation

circumstances, “considered individually or collectively,” were not sufficient to call for

leniency. (ROA 165h.) 

Analysis:

The right to effective assistance of counsel applies not just to the guilt phase, but “with

equal force at the penalty phase of a bifurcated capital trial.” Silva v. Woodford, 279 F.3d

825, 836 (9th Cir. 2002) (quoting Clabourne v. Lewis, 64 F.3d 1373, 1378 (9th Cir. 1995)).

Trial counsel has “a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary”; however, “a particular decision not to

investigate must be directly assessed for reasonableness in all the circumstances, applying a

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heavy measure of deference to counsel’s judgments.” Hayes v. Woodford, 301 F.3d 1054,

1066 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 691). With respect to the prejudice

prong of a sentencing-stage IAC claim, “the question is whether there is a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at

695. In Wiggins v. Smith, 539 U.S. 510, 534 (2003), the Court further noted that, “[i]n

assessing prejudice, we reweigh the evidence in aggravation against the totality of available

mitigating evidence.” The “totality of the available evidence” includes “both that adduced

at trial, and the evidence adduced in the habeas proceeding.” Wiggins, 539 U.S. at 536

(quoting Williams, 529 U.S. at 397-98).

While Petitioner focuses his argument on the reasonableness of trial counsels’

performance, it is unnecessary for this Court to undertake such an analysis because Petitioner

has failed to meet his burden under the second prong of Strickland, which requires that he

“affirmatively prove prejudice.” 466 U.S. at 693. As the Strickland Court explained, “A

court need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. 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”); see Smith v. Robbins, 528 U.S. 259, 286 n.4 (2000);

Fields v. Brown, 431 F.3d 1186, 1203-04 (9th Cir. 2005). 

In support of his argument that counsel were ineffective at sentencing, Petitioner relies

exclusively on an affidavit prepared by a mitigation specialist named Mary Durand in May

of 1997 and filed with Petitioner’s reply to the State’s response to Petitioner’s motion for

rehearing on his PCR petition. (ROA-PCR 302, Ex. A.) In her affidavit, Ms. Durand outlined

her view of the proper scope of a comprehensive mitigation investigation and opined that “no

competent or reliable investigation” was conducted on Petitioner’s behalf prior to sentencing.

(Id. at 6.) The Durand affidavit does not, however, contain any information suggesting what

the results of a more complete social and medical history of Petitioner would have revealed.

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14 Much of the information in Dr. Bayless’s report suggests that further

investigation into Petitioner’s background would not have been productive. The report

indicates that there was not a history of mental illness in Petitioner’s family. The report also

states that, despite Petitioner’s claim that while on death row two years ago – i.e., in 1994,

three years after his conviction – he was “hearing voices,” Petitioner’s “memory, judgment,

concentration, and decision making ability appear to be well within the normal range.”

(ROA-PCR 287, App. B at 3-4.) Moreover, according to Dr. Bayless, Petitioner does not

“have any history . . . [or] exhibit any signs that he would be suffering from any type of

neurological interference.” (Id. at 4.) Dr. Bayless also concluded that Petitioner did not

suffer from an antisocial personality disorder (id. at 5), which was one of the mitigating

factors the trial court found (ROA 165g).

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The record contains no evidence suggesting that there existed additional mitigating

information that trial counsel failed to uncover. The only attempt to proffer such information

is contained in an evaluation performed by a psychologist named Michael Bayless, whose

report, dated November 4, 1996, was filed in support of Petitioner’s PCR petition. (ROAPCR 287, App. B.) Dr. Bayless undertook the evaluation “to determine whether [Petitioner]

has suffered from any mental disease of [sic] defect or has any historical factor that would

change his sentence of death to a life sentence.” (Id. at 1.)

With respect to mitigating circumstances, Dr. Bayless’s report contains no information

substantially different from that included in Dr. McMahon’s report and testimony. The

Bayless report repeats the same details about Petitioner’s traumatic childhood and its effect

on his mental health. (Id. at 1-2, 4-6.) Like Dr. McMahon, Dr. Bayless diagnosed Petitioner

as chemically dependent. (Id. at 6.) Both psychologists attributed Petitioner’s criminal

behavior to his childhood trauma and history of substance abuse. (Id. at 4-6; ROA-PCR 292,

Attachment 3 at 4-6.) Because it contains no new information that would have supported

Petitioner’s case in mitigation, nothing in Dr. Bayless’s report suggests that if trial counsel

had undertaken a more extensive investigation, they would have located additional, relevant

mitigating evidence.14 Petitioner has not shown, in other words, that defense counsel failed

to present all of the available and relevant mitigation information at sentencing. At most, the

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15 The Court notes that neither Dr. McMahon nor Dr. Bayless indicated that they

lacked access to any records or background information necessary to complete their

evaluations, see, e.g., Sims v. Brown, 425 F.3d 560, 583-86 (9th Cir. 2005), again suggesting

that the scope of the mitigation investigation was adequate.

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Bayless report offers support for the mitigation factors which the trial court did in fact find.15

The failure to identify mitigation information that could have been presented but was

not is fatal to Petitioner’s sentencing-phase IAC claim because, as noted above, clearly

established federal law, in the form of Strickland and its progeny, requires Petitioner to show

that he was prejudiced by counsels’ deficient performance. A review of Ninth Circuit cases

makes clear that Petitioner has not met his burden under Strickland. In Villafuerte v. Stewart,

111 F.3d 616, 631 (9th Cir. 1997), for example, the habeas petitioner claimed that trial

counsel was ineffective at sentencing because his investigation into mitigating circumstances

was inadequate. The Ninth Circuit rejected the petitioner’s IAC claim because “he presented

no evidence concerning what [counsel] would have found had he investigated further, nor

what lengthier preparation would have accomplished,” and therefore failed to show that he

had been prejudiced. Id. at 632. The Ninth Circuit reached similar conclusions in Ortiz v.

Stewart, 149 F.3d 923, 933 (9th Cir. 1998) (IAC claim lacked merit where petitioner failed

to specify what information further investigation would uncover), and Ceja v. Stewart, 97

F.3d 1246, 1255 (9th Cir. 1996) (IAC claim failed without an explanation of what compelling

evidence additional investigation would have revealed).

Petitioner has presented nothing by way of evidence or fact-specific arguments that

would support a finding that he was prejudiced by counsels’ failure to undertake a more

thorough mitigation investigation. Without any factual support for the claim that additional

mitigation information existed, this Court cannot conclude that there was a reasonable

probability that had counsel undertaken a more-comprehensive investigation, the trial court

would not have sentenced Petitioner to death. Whether or not counsels’ investigation of

Petitioner’s medical and social background was inadequate, thus rendering counsels’

performance at sentencing deficient, Petitioner has not demonstrated prejudice under the

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second prong of Strickland. 

After an independent review of the record, this Court concludes that the decision of the

PCR court denying Petitioner relief on this claim was not objectively unreasonable. Petitioner

is not entitled to relief on Claim 13(C).

EVIDENTIARY DEVELOPMENT

In its procedural default order this Court denied Petitioner’s request for an evidentiary

hearing, but stated that Petitioner may, in his merits brief, “renew his request that an

evidentiary hearing be held on those claims.” (Dkt. 46 at 19.) Petitioner did not make such

a request. Furthermore, the Court concludes that none of Petitioner’s claims warrant

evidentiary development because the allegations upon which they are based, even if true, do

not entitle Petitioner to habeas relief. 

CONCLUSION

The Court finds that Petitioner has failed to establish entitlement to habeas relief on

any of his claims. The Court further finds that an evidentiary hearing in this matter is neither

warranted nor required. 

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s Second Amended Petition for Writ of

Habeas Corpus (Dkt. 26) is DENIED WITH PREJUDICE. The Clerk of Court shall enter

judgment accordingly.

IT IS FURTHER ORDERED that the stay of execution entered by this Court on July

15, 1998, is VACATED.

IT IS FURTHER ORDERED that the Clerk of Court send a courtesy copy of this

. . . 

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Order to Noel Dessaint, Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix,

Arizona 85007-3329.

DATED this 22nd day of June, 2006.

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