Kemp v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS ARNOLD KEMP, 

Petitioner-Appellant,

No. 08-99030

v.

CHARLES L. RYAN, TERRY L.  D.C. No.

4:00-cv-00050-FRZ

STEWART, Director; GEORGE

OPINION

HERMAN,

Respondents-Appellees.



Appeal from the United States District Court

for the for the District of Arizona

Frank R. Zapata, Senior District Judge, Presiding

Argued and Submitted

March 10, 2011—Pasadena, California

Filed April 28, 2011

Before: Pamela Ann Rymer, Consuelo M. Callahan, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Callahan

5481

5484 KEMP v. RYAN

COUNSEL

Jon M. Sands, Federal Public Defender, Timothy M. Gabriel-

sen (argued), and Sylvia J. Lett, Assistant Federal Public

KEMP v. RYAN 5485

Defenders, of Tucson, Arizona, for petitioner-appellant

Thomas Arnold Kemp.

Terry Goddard, Arizona Attorney General, Kent Cattani

(argued), Chief Counsel Criminal Appeals, and Donna J.

Lam, Assistant Attorney General of Tucson, Arizona, for

respondents-appellees Charles L. Ryan, et al.

OPINION

CALLAHAN, Circuit Judge:

Thomas Arnold Kemp raises three issues in his appeal from

the district court’s denial of his habeas petition seeking relief

from his state conviction for felony first-degree murder,

armed robbery and kidnaping and from his capital sentence.

First, Kemp asserts that his rights to be free from compelled

self-incrimination and to counsel under the Fifth, Sixth, and

Fourteenth Amendments were violated when correctional

officers asked him questions and his incriminating statements

were admitted at trial. Kemp also argues that the district court

abused its discretion in denying him discovery to prove this

claim. Second, Kemp contends that without his incriminating

statements, which should have been suppressed, the prosecu-

tion failed to prove beyond a reasonable doubt that he pos-

sessed the requisite mental state for the imposition of the

death penalty. Third, Kemp claims that he was denied due

process under the Fourteenth Amendment when the prosecu-

tor was dilatory in giving notice that he would introduce evi-

dence that Kemp committed a homosexual sexual assault, the

trial court failed to rule the subsequent bad act admissible

until after the jury had been voir dired, and the trial court then

denied Kemp’s request to voir dire the jury on homosexual

bias. We affirm. Kemp has not shown that the Arizona

Supreme Court’s opinion affirming his conviction and capital

sentence was either “an unreasonable application of, clearly

5486 KEMP v. RYAN

established Federal law,” or “an unreasonable determination

of the facts,” as required for relief under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254.

I

A. Kemp’s Criminal Activities.

The underlying criminal acts were described as follows by

the district court:

On July 11, 1992, at approximately 11:15 p.m., Hec-

tor Juarez awoke when his fiancee, Jamie, returned

from work to their residence at the Promontory

Apartments in Tucson. A short time later, Juarez left

to get something to eat. Jamie assumed he went to a

nearby fast food restaurant.

At around midnight, Jamie became concerned that

Juarez had not come home and began to look for

him. She found both her car and his car in the park-

ing lot. Her car, which Juarez had been driving, was

unlocked and smelled of fast food; the insurance

papers had been placed on the vehicle’s roof. After

checking with Juarez’s brother and a friend, Jamie

called the police.

Two or three days before Juarez was abducted, Jeff-

ery Logan, an escapee from a California honor farm,

arrived in Tucson and met with Petitioner. On Fri-

day, July 10, Logan went with Petitioner to a pawn

shop and helped him buy a .380 semi-automatic

handgun. Petitioner and Logan spent the next night

driving around Tucson. At some time between 11:15

p.m. and midnight, Petitioner and Logan abducted

Juarez from the parking area of his apartment com-

plex.

KEMP v. RYAN 5487

At midnight, Petitioner used Juarez’s ATM card and

withdrew approximately $200. He then drove Juarez

out to the Silverbell Mine area near Marana. Peti-

tioner walked Juarez fifty to seventy feet from the

truck, forced him to disrobe, and shot him in the

head twice.

Petitioner then made two unsuccessful attempts to

use Juarez’s ATM card in Tucson. The machine kept

the card after the second attempt. Petitioner and

Logan repainted Petitioner’s truck, drove to Flag-

staff, and sold it. They bought another .380 semi-

automatic handgun with the proceeds.

While in Flagstaff, Petitioner and Logan met a man

and woman who were traveling from California to

Kansas. They abducted the couple and made them

drive to Durango, Colorado; in a motel room there,

Petitioner forced the man to disrobe and sexually

assaulted him.

Later, Petitioner, Logan, and the couple drove to

Denver, where the couple escaped. Logan and Peti-

tioner separated. Logan subsequently contacted the

Tucson police about the murder of Juarez. He was

arrested in Denver.

With Logan’s help, the police located Juarez’s body.

Later that day, the police arrested Petitioner at a

homeless shelter in Tucson. He was carrying the

handgun purchased in Flagstaff and a pair of hand-

cuffs. After having been read his Miranda rights,

Petitioner answered some questions before asking

for a lawyer. He admitted that he purchased a hand-

gun with Logan on July 10. He said that on the day

of the abduction and homicide he was “cruising”

through apartment complexes, possibly including the

Promontory Apartments. When confronted with the

5488 KEMP v. RYAN

ATM photographs, he initially denied being the indi-

vidual in the picture. After having been told that

Logan was in custody and again having been shown

the photographs, Petitioner said, “I guess my life is

over now.”

B. Kemp’s Incriminating Statements While in Jail.

After he was arrested, Kemp was advised of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966). Later in the

evening, Kemp was interviewed by Detective Salgado, but

when he was asked about his contact with Juarez, Kemp

invoked his right to counsel.

Kemp was taken to the Pima County Jail. During his stay

in the jail, Kemp made two incriminating statements. The dis-

trict court described the events surrounding the statements as

follows:

John Jackson, an officer at the Pima County Jail,

walked by Petitioner’s cell in the disciplinary pod

and they had a three to five minute conversation.

Jackson did not recall who initiated the interaction.

During the conversation, Petitioner volunteered that

he had requested to be moved to the disciplinary pod

“because the guy I killed was a Mexican. That the

Mexicans in the pod were after him, and he wanted

to be moved from there for his own protection.” At

the time, Jackson did not write a report on the con-

versation.

Kippy Compton, a Pima County Sheriff’s Depart-

ment correctional officer, recognized Petitioner from

a general population pod at the jail. On December

14, 1992, he transported Petitioner within the jail and

saw on his identification card that he was in AS1,

which is a protective custody status. Compton testi-

fied that he must have been off the day they were

KEMP v. RYAN 5489

briefed about Petitioner’s status change; the officers

are briefed because they need to be aware of any

other inmate(s) the person may need to be kept away

from. Compton asked Petitioner why he was in AS1

and testified that Petitioner gave the following

response: “that Hispanic guy I killed or the guy I

killed was Hispanic and the Hispanic guys in the pod

think it’s racially motivated, and he — he said the

whites said they can’t help me or won’t help me, and

so I asked to be put on protective custody.” Compton

testified that he was not trying to ask Petitioner

about his case because the inmates are not going to

talk about their cases and he didn’t care. Compton

did not question Petitioner further, did not threaten

him, or make any promises to him. Compton testi-

fied that inmates are expected to respond when ques-

tioned by a correctional officer. After thinking about

it, Compton decided to write the conversation up in

a memo.

While Jackson was carpooling home with Compton

one evening, Compton mentioned his conversation

with Petitioner and then Jackson mentioned that he

had a similar statement from Petitioner. After that

conversation, Jackson prepared a report about his

conversation with Petitioner.

Kemp filed a pretrial motion to suppress the two statements

he had made to Jackson and Compton. The trial court held a

hearing on the motion at which both officers testified. The

state court found that Kemp’s statements to the officers were

voluntary and admissible because the conversations were

informal and they were not intended or designed to elicit

incriminating responses. The officers testified at trial consis-

tent with their testimony at the suppression hearing.

C. The Alleged Curtailment of Voir Dire.

In September 1992, Kemp, through his attorney, first

sought discovery with respect to possible prior and subse-

5490 KEMP v. RYAN

quent bad acts that the prosecutor might seek to present at

trial. At a December 1992 pretrial hearing, the prosecutor

agreed to give Kemp a list of prospective witnesses and noted

that in the afternoon he would be interviewing the “couple

that were kidnaped out of Flagstaff.” On January 25, 1993,

Kemp filed a motion seeking discovery of evidence concern-

ing the alleged kidnaping of the couple, which the trial court

granted.

Apparently, the State did not provide Kemp with the infor-

mation requested, and on May 26, 1993, counsel filed two

motions in limine to preclude the presentation of any evidence

of any prior or subsequent bad acts by Mr. Kemp. One of the

motions specifically requested that the kidnaped couple “not

be allowed to testify as to any inappropriate sexual behavior

by Mr. Kemp towards [the husband].”

On June 2, 2003, the case was called for trial in the Supe-

rior Court of Arizona, in and for the County of Pima. The

judge was intent on selecting a jury, and when Kemp’s attor-

ney, Mr. Larsen, noted that there were unresolved pretrial

motions, the court indicated that it intended to begin jury

selection “before we hear anything on the motion for change

of venue.” The prosecutor, Kenneth Peasley, tendered a new

witness list, which included the husband abducted in Flag-

staff. He indicated that the husband would present evidence

concerning: (1) Kemp’s silence to statements made by Logan

in the husband’s presence; (2) the husband’s kidnaping; and

(3) that “in the room in Durango Mr. Kemp attempt[ed] to

sexually molest and assault” the husband. Peasley further

claimed that the sexual assault was “proof of all motives that

Mr. Kemp has for the killing, and also explains conditions

here in Tucson.” After Peasley’s comments, the trial judge

stated “I don’t need to hear from you on that now, Mr. Lar-

sen.”

A little later, before potential jurors entered the courtroom,

Larsen reiterated that he wanted to know “prior to trial what

KEMP v. RYAN 5491

physical evidence and exhibits” the prosecutor intends to use.

The prosecutor apparently stated that he intended to introduce

materials seized from Kemp, including photographs of naked

men, but would make no reference to Kemp’s sexually

explicit materials and alleged homosexual act in his opening

statement. The trial court indicated that the matter would be

considered later.

The trial court then asked the prosecutor and defense coun-

sel whether they were ready to proceed and each answered

yes. The prospective jurors were sworn in and the judge pro-

ceeded to voir dire the jury panel. When the trial judge asked

counsel to pass on the panel, defense counsel stated that he

had a number of questions. Defense counsel requested a rul-

ing on the evidence that the prosecutor sought to introduce

“regarding any sexual matters as it pertains to both [victims].”

Larsen was particularly concerned with the possible impact of

allegations of sexual molestation on a juror whose father-in-

law had been convicted of an incest charge. The trial judge

proceeded to ask additional questions of that juror, but did not

mention homosexuality. When defense counsel objected that

the questions did not begin “to approach what was necessary,”

the trial judge responded that Larsen had made his record.

After the jury was empaneled, the trial court considered the

outstanding motions. The judge, Larsen, and Peasley engaged

in an extended discussion of the prosecutor’s desire to have

the husband testify concerning Kemp’s alleged sexual assault

and to present other evidence of Kemp’s homosexuality. Lar-

sen argued that the alleged incident was irrelevant and should

not be admitted as it might inflame the jury. At one point he

stated “if we are going to allow this — this onslaught of

homosexual activity I want to re-voir dire the jury. I want to

find out what their thoughts are on homosexuality.” The trial

judge eventually determined that the “sexual contact with [the

husband] is sufficiently relevant to allow that to be admitted

into evidence.” The trial judge, however, limited the other

evidence that could be admitted. The next day, defense coun-

5492 KEMP v. RYAN

sel reiterated his objections to the admission of the evidence

of Kemp’s contact with the husband, and argued that it was

contrary to the court’s prior ruling that no prior bad acts were

to be used. Defense counsel, however, did not request further

voir dire of the jury.

D. Kemp’s Sentencing.

On June 7, 1993, the jury returned verdicts finding Kemp

guilty of felony first-degree murder, armed robbery, and kid-

naping. The matter proceeded to the sentencing hearing on

July 9, 1993. The judge indicated that he had read the presen-

tence report and the memoranda submitted by the parties. The

court asked the prosecutor to argue with respect to Kemp’s

eligibility for the death penalty based on his conviction for

felony murder under Enmund v. Florida, 458 U.S. 782 (1982)

and Tison v. Arizona, 481 U.S. 137 (1987).1 The prosecutor

argued that the Enmund/Tison requirements were met by the

evidence that (a) Kemp bought the handgun that was used, (b)

Kemp made admissions to Detective Salgado concerning Jua-

rez’s disappearance, (c) Kemp used Juarez’s ATM card, (d)

Juarez’s body was found only partially clothed, (e) the hus-

band testified that Kemp attempted to sexually assault him,

and (f) Kemp admitted to two correctional officers that he

killed Juarez. Defense counsel responded that there was a lack

of physical evidence to connect Kemp to Juarez and that the

prosecutor’s case was compromised by statements made by

co-defendant Logan, who was completely unbelievable.

1

The district court explained:

In Enmund, the Supreme Court held that a felony murder defen-

dant is eligible for the death penalty only if he actually killed,

attempted to kill, or intended to kill the victim. 458 U.S. at 797.

The Court subsequently expanded Enmund’s rule so that a felony

murder defendant could be sentenced to death if the defendant

was a major participant in the underlying felony and acted with

reckless indifference to human life. Tison v. Arizona, 481 U.S. at

157-58.

KEMP v. RYAN 5493

The trial judge found Kemp eligible for the death penalty

under Enmund-Tison for his felony-murder conviction. After

considering all the evidence and argument proffered by the

parties, including Kemp’s statement,2 the trial judge found

that the prosecution had established three aggravating facts

beyond a reasonable doubt: (1) Kemp had been previously

convicted of a violent felony; (2) Kemp acted for the purpose

of pecuniary gain; and (3) the murder was committed in an

2

When Kemp was asked whether he wanted to say something in the way

of mitigation, he first indicated that he was pleased with the services of

his attorney and then stated:

The prosecutor, in his alleged wisdom, has portrayed me as being

a killer without remorse or regret. This is a wholly inaccurate

assessment. I feel a deep and abiding sense of remorse at having

permitted friendship to stay my hand in the face of wiser counsel;

thus electing not to kill Jeff Logan at a time when both instinct

and circumstances demanded his death.

You can rest assured that is a lapse of judgment I will never

repeat and one which I will bend all my energies towards correct-

ing in the not too distant future. Beyond that, I regret nothing.

The media has engaged in an orgy of speculation and innuendo

concerning the events of mid-July ‘92. They printed and reported

every word spewed from Logan’s mouth as though they were

engraved in stone and handed down from God. They printed

every accusation Logan made, whether or not it had the slightest

bearing on this case, and at no time made any effort at verifica-

tion.

I was convicted in the press and on the televised news long

before my case ever came to trial. Make no mistake, the day will

come when I return to Tucson. And on that day I will remember

all the kind things certain reporters had to say about me.

The so-called victim was not an American citizen and, therefore,

was beneath my contempt. Wetbacks are hardly an endangered

species in this state. If more of them wound up dead, the rest of

them would soon learn to stay in Mexico, where they belong.

I don’t show any mercy and I am certainly not here to plead for

mercy. I spit on the law and all those who serve it; most espe-

cially you, Peasley. I have more respect for Salgado than I have

for you.

5494 KEMP v. RYAN

especially cruel manner. The judge further found that Kemp

had failed to show any mitigating factors, and concluded that

even if any of his assertions rose to the stature of a mitigating

factor, it would not be sufficient to call for leniency. The trial

court imposed a sentence of death “as prescribed by law for

the conviction for murder in the first degree.”

E. State Post-Trial Proceedings.

On direct appeal, the Arizona Supreme Court affirmed

Kemp’s conviction and death penalty. State v. Kemp, 912

P.2d 1281 (1996). Among the many issues Kemp raised were

his challenges to the admission of his comments to the correc-

tional officers. The Arizona Supreme Court rejected these,

explaining:

The trial judge’s finding that the statements were

voluntary was not clearly and manifestly wrong. See

State v. Scott, 865 P.2d 792, 797 (1993). The record

supports the finding that the corrections officials

were not attempting to overcome Kemp’s will to

induce him to inculpate himself. While Jackson and

Compton testified that inmates generally had to

respond to their inquiries, their questions concerned

only the “day to day” circumstances of his incarcera-

tion. Kemp was not obligated to make these admis-

sions. Cf. Oregon v. Bradshaw, 462 U.S. 1039, 1045

(1983) (noting that inquiries between the accused

and the State “relating to routine incidents of the

custodial relationship[ ] will not generally ‘initiate’

a conversation in the sense in which that word was

used in Edwards [v. Arizona, 451 U.S. 477 (1981)

(holding that a request for a lawyer requires the

police to cease questioning until the accused consults

with his or her lawyer unless the defendant initiates

further conversation) ].”).

Kemp argues that Miranda requires the exclusion of

the statements because he had previously asserted

KEMP v. RYAN 5495

his right to counsel. Edwards v. Arizona, 451 U.S.

477 (1981). But Miranda only applies to custodial

interrogation. Jackson and Compton did not attempt

to elicit an incriminating response from Kemp. See

Rhode Island v. Innis, 446 U.S. 291 (1980) (holding

that a comment made by one police officer to

another, in the presence of the accused, expressing

concern that handicapped children might come

across a shotgun, is not a statement designed to elicit

an incriminating response).

Compton only asked Kemp why he was in protective

custody. He did not interrogate him. Routine inqui-

ries by guards concerning the security status of pris-

oners are not statements designed to elicit an

incriminating response. Id. Compton’s question was

reasonable and relevant to maintaining order in the

prison and protecting Kemp. Similarly, Kemp’s

statements to Jackson were the product of ordinary,

everyday interaction between guard and prisoner.

Because Kemp was not interrogated by Compton

and Jackson, the admission of his statements did not

violate Miranda and his rights under art. 2, § 24 of

the Arizona Constitution.

Kemp’s assertion that his Sixth Amendment Massiah

rights were violated fails for the same reason his

Miranda claim fails: the guards did not seek to elicit

incriminating evidence from him. Kuhlmann v. Wil-

son, 477 U.S. 436, 459 (1986) (holding that “the

defendant must demonstrate that the police and their

informant took some action, beyond merely listen-

ing, that was designed deliberately to elicit incrimi-

nating remarks”). Kemp’s admissions therefore were

properly admitted.

912 P.2d at 1287.

5496 KEMP v. RYAN

The Arizona Supreme Court also addressed Kemp’s argu-

ments concerning the admission of his alleged assault of the

husband. It first held that even if evidence of the alleged

assault should have been excluded, its admission was harm-

less error because “Kemp’s conviction is supported by over-

whelming evidence of his guilt, including his own statements

to the police and corrections officials.” Kemp, 912 P. 2d at

1288. The court further ruled:

Kemp also argues that the prosecutor did not timely

disclose that the subsequent homosexual assault

would be used against him. Before trial, the court on

two occasions ordered the State to disclose the bad

acts it would use. See Rule 15.1(a)(6), Ariz. R. Crim.

P. The State did disclose the victim of the subse-

quent homosexual assault as a possible witness

approximately six months before trial. While it never

provided Kemp with a list of his bad acts, Rule

15.1(a)(6) appears to apply to prior acts and not sub-

sequent conduct. But even if Rule 15.1(a)(6) applies

here, there simply was no prejudice.

Discovery rulings are affirmed unless there is an

abuse of discretion. See State v. Krone, 897 P.2d

621, 624 (1995). Kemp argues that he was unable to

obtain a fair and impartial jury and he was unable to

develop any impeachment or motive evidence

against the victim of the subsequent homosexual

assault. We disagree.

First, the record is clear that Kemp’s trial counsel

was aware that Kemp’s homosexuality potentially

would be placed before the jury. Logan’s statements

to the police and media raised the issue. In addition,

Logan’s trial preceded Kemp’s, and the witness

Kemp sought to preclude testified regarding the

same events at Logan’s trial. Furthermore, Kemp

successfully suppressed other evidence of his homo-

KEMP v. RYAN 5497

sexuality, including sexually explicit photographs

and a journal purportedly detailing his homosexual

encounters. Although Kemp did not have a ruling

regarding the bad act evidence prior to voir dire, he

was clearly aware of the issue, was not surprised,

and could have developed it at voir dire if he so

wanted.

Second, Kemp’s argument that he was unable to

develop impeachment or motive evidence is without

merit. The only connection the witness had to Kemp

was the misfortune of being his kidnaping, robbery,

and sexual assault victim. The witness was listed

approximately six months before Kemp’s trial and

testified about the same events at Logan’s trial.

There was no abuse of discretion.

Id.

In February 1999, Kemp filed a petition for post-conviction

relief with the trial court claiming ineffective assistance of

counsel. The trial court denied the petition in May 1999, and

in January 2000, the Arizona Supreme Court denied the peti-

tion for review.

F. Federal Habeas Corpus Proceedings.

In January 2000, Kemp filed a pro se petition for a writ of

habeas corpus in the United States District Court for the Dis-

trict of Arizona. Proceedings were stayed to allow Kemp to

seek relief in state court pursuant to Ring v. Arizona, 536 U.S.

584 (2002), and in August 2003, the Federal Public Defender

was appointed as replacement counsel for Kemp.

In March 2005, the district court filed an order finding that

six of Kemp’s claims were procedurally defaulted, denying

relief on another count, and finding that one asserted claim

was not cognizable. In August 2006, Kemp moved for discov-

5498 KEMP v. RYAN

ery and an evidentiary hearing concerning the circumstances

surrounding his statements to the correctional officers. After

briefing, the district court on September 17, 2007, denied the

request for discovery and an evidentiary hearing. The district

court agreed with the Arizona Supreme Court that Kemp’s

statements to the correctional officers were voluntary.3 It fur-

ther determined that “[n]othing in the brief contacts between

either of the correctional officers and Petitioner was reason-

ably likely to elicit an incriminating response; the interactions

carry no indicia of an interrogation.” The district court also

determined that Kemp’s right to counsel was not violated by

the communications with the correctional officers. In addi-

tion, the court held that “[b]ecause listening-in on conversa-

tions and reporting them is not unconstitutional,” there was no

good cause for the requested discovery.

The district court also rejected Kemp’s Enmund-Tison

claim. The court noted that the state court’s factual findings

including the jury’s special verdict that Kemp “intended to

kill and did kill the victim” are presumed correct. The district

court found that the totality of the evidence, including Kemp’s

statements to the correctional officers, was more than suffi-

cient to allow a rational factfinder to “find that Petitioner

killed, intended to kill or was a major participant in the under-

3

The district court commented:

First, there is no clear evidence that Jackson posed any question

to Petitioner; Jackson does not recall who initiated the conversa-

tion and testified that Petitioner volunteered the statement about

his housing status. Second, the fact that Petitioner was obligated

to respond to either Compton and/or Jackson, in no way indicated

that his incriminating responses were coerced. Petitioner could

have truthfully and appropriately answered questions regarding

why he was in a protective custody status without incriminating

himself. Even if answering necessarily required a response

regarding the crime with which he was charged, it did not

require an admission about guilt. Nothing in the circumstances of

Petitioner’s statements indicates that his will was overborne.

(emphasis in original).

KEMP v. RYAN 5499

lying felony and acted with reckless indifference to human

life.”

On September 11, 2008, the district court issued a Memo-

randum of Decision and Order denying the remaining claims

in Kemp’s habeas petition. The court rejected Kemp’s claim

to voir dire regarding homosexuality for several reasons.

First, it found that “the record plainly shows that prior to voir

dire the defense was on notice that the sexual assault victim

was a potential witness whose testimony would address the

subsequent bad act.” Second, it held that “[e]ven assuming the

existence of Supreme Court precedent applying the same voir

dire requirements with respect to issues of race and sexuality,

such voir dire was not required in Petitioner’s case because

the sentencing was not carried out by the jury but by the trial

judge.” Third, the court determined that Kemp’s “homosexu-

ality was not ‘inextricably bound up with’ his case to the

extent that specific inquiry into the issue of homosexuality

was required,” and that “the issue of homosexuality was not

bound up with the defense; nor did the trial involve allega-

tions of homosexual prejudice.” Finally, the trial court con-

cluded, citing Mu’Min v. Virginia, 500 U.S. 415 (1991), that

Kemp “has not shown that the lack of voir dire on the issue

of homosexuality rendered his trial ‘fundamentally unfair.’ ”

The district court on September 29, 2008, certified three

issues for appeal:

Whether Claim 2 of the Amended Petition — alleg-

ing that Petitioner’s right to a fair and unbiased jury

was violated by the trial court’s refusal to allow voir

dire on the issue of homosexual bias — is meritori-

ous.

Whether Claim 3 of the Amended Petition — alleg-

ing that the admission of Petitioner’s statements to

two correctional officers was unconstitutional — is

meritorious.

5500 KEMP v. RYAN

Whether Claim 12 — alleging that there was insuffi-

cient evidence to support a finding of death eligibil-

ity if the statements of the correctional officers had

been excluded — is meritorious.

Kemp filed a timely notice of appeal on October 27, 2008.

II

A district court’s denial of a § 2254 habeas petition is

reviewed de novo. Waldron-Ramsey v. Pacholke, 556 F.3d

1008, 1011 (9th Cir. 2009); Pham v. Terhune, 400 F.3d 740,

741 (9th Cir. 2005) (per curiam). The district court’s findings

of fact are reviewed for clear error, Bonin v. Calderon, 59

F.3d 815, 823 (9th Cir. 1995), legal conclusions are reviewed

de novo, Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir.

2008), and we may affirm on any ground supported by the

record. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.

2004).

Because Kemp’s federal habeas petition was filed after the

effective date of AEDPA, relief can only be granted if the

state court decision either:

(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 unrea-

sonable determination of the facts in light of the evi-

dence presented in the State court proceeding.

28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 420,

429 (2000).

III

Kemp raises three arguments on appeal: (1) his rights to be

free from compelled self-incrimination under the Fifth

KEMP v. RYAN 5501

Amendment and to counsel under the Sixth Amendment were

violated when the correctional officers stimulated conversa-

tions with him and elicited incriminating statements that were

admitted at trial; (2) without his statements to the correctional

officers there is insufficient evidence to support the imposi-

tion of a capital sentence under Enmund, 458 U.S. 782, and

Tison, 481 U.S. 137; and (3) he was denied due process when

the prosecutor was dilatory in giving notice that he would

introduce evidence that Kemp committed a homosexual

assault subsequent to the murder and Kemp was denied the

opportunity to voir dire the jury on homosexual bias.

A. Admission of Kemp’s Incriminating Statements

Did Not Violate His Rights Under the Fifth and

Sixth Amendments.

Kemp advances two lines of argument to support his claim

that his incriminating statements should not have been admit-

ted. First, he argues that the Arizona Supreme Court unrea-

sonably applied Edwards, 451 U.S. 477, to his case. Second,

he argues that because the record is “devoid of all facts neces-

sary to determine what the officers intended” the district court

should have granted his request for further discovery and an

evidentiary hearing. We determine that the Arizona Supreme

Court did not render a decision that was contrary to or an

unreasonable application of the controlling Supreme Court

cases and that the district court did not err in denying Kemp

further discovery and an evidentiary hearing.

1. The Arizona Supreme Court did not unreasonably

apply clearly established Federal law.

Kemp argues, citing Edwards, 451 U.S. at 484-85, that the

Supreme Court set forth a clear rule that once a defendant in

custody has expressed his desire to deal with the police only

through counsel, the officers may not ask any further ques-

tions. He contends that only the accused may initiate a con-

versation in order for there to be a valid waiver of the

5502 KEMP v. RYAN

accused’s rights. Kemp claims that the court’s reliance on

Bradshaw, 462 U.S. at 1045, was faulty because in that case

only a plurality of the Supreme Court stated, in dicta, that

police may lawfully initiate conversations after an accused

had invoked his Fifth Amendment right to remain silent.

Kemp further asserts that cases relied on by the Arizona

Supreme Court, such as Innis, 446 U.S. 291, are distinguish-

able because they involve situations where the accused initi-

ated communications.

[1] We do not agree with Kemp’s reading of the control-

ling Supreme Court opinions. In Innis, the Supreme Court

reiterated that the term “interrogation” under Miranda “refers

not only to express questioning, but also to any words or

actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating

response.” Id. at 301 (emphasis added). The Court further

noted that “[i]nterrogation . . . must reflect a measure of com-

pulsion above and beyond that inherent in custody itself.” Id.

at 300. It also noted that “since the police surely cannot be

held accountable for the unforeseeable results of their words

or actions, the definition of interrogation can extend only to

words or actions on the part of police officers that they

should have known were reasonably likely to elicit an

incriminating response.” Id. at 301-02 (emphasis in original).

[2] The Arizona Supreme Court held that Miranda did not

apply because Compton only asked Kemp why he was in pro-

tective custody and did not interrogate Kemp. Kemp, 912 P.2d

at 1286-87. Such an inquiry qualifies as a question that is

“normally attendant to . . . custody,” and thus, not covered by

Miranda. The Arizona Supreme Court’s application of Innis

was not “an unreasonable application of clearly established

Federal law” under § 2254(d)(1).

The reasonableness of the Arizona Supreme Court’s per-

spective is supported by the plurality opinion in Bradshaw.

Then-Justice Rehnquist writing for four Justices commented:

KEMP v. RYAN 5503

While we doubt that it would be desirable to build a

superstructure of legal refinements around the word

“initiate” in this context, there are undoubtedly situa-

tions where a bare inquiry by either a defendant or

by a police officer should not be held to “initiate”

any conversation or dialogue. There are some inqui-

ries, such as a request for a drink of water or a

request to use a telephone that are so routine that

they cannot be fairly said to represent a desire on the

part of an accused to open up a more generalized dis-

cussion relating directly or indirectly to the investi-

gation. Such inquiries or statements, by either an

accused or a police officer, relating to routine inci-

dents of the custodial relationship, will not generally

“initiate” a conversation in the sense in which that

word was used in Edwards.

462 U.S. at 1045. Admittedly, this position was adopted by

only a plurality of the Court. However, the fact that four

Supreme Court Justices believe that “a bare inquiry by . . . a

police officer should not be held to ‘initiate’ any conversa-

tion” affirms that a similar perspective by the Arizona

Supreme Court is not unreasonable.4

[3] Because the Arizona Supreme Court’s holding that the

questions by the correctional officers did not constitute “inter-

rogations” under Innis was not an unreasonable application of

that precedent, Kemp’s claim under Massiah v. United States,

377 U.S. 201 (1964), must also fail, since nothing in the

record or Supreme Court case law indicates that the specific

type of custody-related inquiry at issue here was “designed

deliberately to elicit incriminating remarks,” Kuhlmann v.

4

See Murdoch v. Castro, 609 F.3d 983, 991-93 (9th Cir. 2010) (en banc)

(“[W]hen there is a principled reason for the state court to distinguish

between the case before it and Supreme Court precedent, the state court’s

decision will not be an unreasonable application of clearly established

Supreme Court law.”).

5504 KEMP v. RYAN

Wilson, 477 U.S. 436, 459 (1986). Accordingly, the Arizona

Supreme Court’s reasonable application of “clearly estab-

lished Federal law” with regard to Kemp’s Fifth Amendment

claim, is also a reasonable application of the law with regards

to his Sixth Amendment claim.5

2. The Arizona Supreme Court’s factual determinations

are not unreasonable.

a. Kemp’s contentions.

Kemp does not directly challenge the state courts’ determi-

nation that the officers did not attempt to elicit incriminating

responses and did not interrogate him. Instead, Kemp con-

tends that the district court should have granted his request for

further discovery.6 Kemp sought discovery in order to prove

that contrary to the factual determination of the state courts,

the correctional officers “engaged him in conversations in

order to acquire incriminating information about his case.”

Kemp claims that the information sought would show that

officers were trained to intentionally eavesdrop on and memo-

rialize conversations with inmates, and to provide inmate

statements to the Pima County Attorney.

5

Our conclusion is also supported by the Supreme Court’s opinion in

Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Supreme

Court overruled the rule announced in Michigan v. Jackson, 475 U.S. 625

(1986), “forbidding police to initiate interrogation of a criminal defendant

once he has requested counsel at an arraignment of similar proceeding.”

Id. at 2082. Instead, the Court held that the prophylaxis afforded by

Miranda and Edwards were sufficient. Id. at 2090. The Court commented

that because the right to be free from compelled self-incrimination and the

right to counsel are “waived using the same procedure, . . . doctrines

ensuring voluntariness of the Fifth Amendment waiver simultaneously

ensure the voluntariness of the Sixth Amendment waiver.” Id.

6

Kemp sought to depose Officers Compton and Jackson, and requested

subpoenas for records of the Pima County Jail, Pima County Sheriff’s

Office, and the Pima County Attorney’s Criminal Division for the period

1990 through 1993.

KEMP v. RYAN 5505

In support of his discovery request, Kemp asserted that in

a Pima County capital murder trial held prior to his trial, a

correctional officer testified that: (1) he overheard a conversa-

tion between the defendant and another jail inmate; (2) there

was paper and a writing instrument available to him to memo-

rialize the conversation; and (3) the highly incriminating

statements were passed on to the Pima County Attorney’s

office for use in the prosecution.7 See State v. Eastlack, 883

P.2d 999, 1008 (Ariz. 1994). He further claims that in another

Pima County capital case, State v. Moody, 94 P.3d 1119, 1142

(Ariz. 2004), a Pima County correctional officer was ordered

to keep an eye on an inmate and subsequently testified as to

the inmate’s incriminating statements. Kemp argues that “evi-

dence that correctional officers are trained to question inmates

about their cases and memorialize the inmates’ responses to

such questioning would seriously undermine the state courts’

determinations that Compton and Jackson’s contact with

Kemp did not constitute interrogation about his case.”

Kemp further notes that the prosecutor in his case, Peasley,

was subsequently disbarred for suborning perjury from a

police detective in another capital prosecution in Pima

County. See In re Peasley, 90 P.3d 764, 778 (Ariz. 2004).

Kemp argues that given Peasley’s track record, the district

court should have allowed him to explore the relationship

between Peasley and the two correctional officers.

Kemp argues that he demonstrated good cause for discov-

ery as required by Rule 6(a) of the Rules Governing Habeas

Proceedings in the District Courts. He claims he has made the

requisite showings of credible allegations of a constitutional

violation and that the discovery would enable him to investi-

gate and prove his claim. He asserts that the Supreme Court’s

opinion in Missouri v. Seibert, 542 U.S. 600 (2004), acknowl-

7

Kemp notes that the prosecutor in that case was later disciplined for

unethical behavior in a homicide prosecution, see In re Zawada, 92 P.3d

862 (Ariz. 2004).

5506 KEMP v. RYAN

edges the relevance of law enforcement training with respect

to interrogations. Here, Kemp claims that discovery is neces-

sary because of the possible subtle means of interrogation

employed in the Pima County Jail. Moreover, an evidentiary

hearing is allegedly necessary because the district court had

insufficient evidence to appreciate why the evidence produced

at the state suppression hearing was inadequate.

Kemp admits that he did not develop the factual basis for

discovery in the state courts, but argues that this was not the

result of a lack of diligence. He asserts that his trial counsel

“was not reasonably on notice, based on the suppression hear-

ing testimony, that evidence might have existed in the form

of the officers’ training or the existence of printed or video

training materials that would have undermined the testimony

given by Officers Compton and Jackson.” Kemp contends

that the correctional officer’s testimony in Eastlack, which

was given less than two years before his trial, “could not have

been reasonably known to Kemp’s trial counsel because that

testimony was not mentioned in the Arizona Supreme Court’s

decision in that case.” Kemp claims that it was “mere fortu-

ity” that his present counsel learned of the officer’s testimony

in Eastlack, and argues that where “a capital habeas petitioner

learns by sheer happenstance of the existence of facts that

might have supported a claim in state court, he cannot be

determined to have lacked diligence in developing the sup-

porting facts for his claim.”

Based on the foregoing, Kemp asserts that he “met the bur-

den of establishing ‘good cause’ for the discovery he sought,

and the district court abused its discretion in failing to allow

discovery.”

b. The district court reasonably denied Kemp’s discovery

request and request for an evidentiary hearing.

[4] We first consider whether AEDPA bars Kemp from

having an evidentiary hearing on his claim that correctional

KEMP v. RYAN 5507

officers deliberately elicited incriminating statements, in vio-

lation of his Sixth Amendment rights. If AEDPA imposed

such a bar in this case, the petitioner could not show good

cause, and the district court would not have abused its discre-

tion by denying Kemp’s discovery request.8

[5] Section 2254(e)(1) of AEDPA bars most evidentiary

hearings if the applicant “failed” to develop the factual basis

for the claim in state court. In this context, “failed” “connotes

some omission, fault, or negligence on the part of the person

who has failed to do something.” Williams, 529 U.S. at 431-

32. If the petitioner is not at fault (as defined for purposes of

§ 2254(e)(1)), we evaluate the propriety of an evidentiary

hearing under the factors prescribed by Townsend v. Sain, 372

U.S. 293 (1963), overruled on other grounds, Keeney v.

Tamayo-Reyes, 504 U.S. 1, 5 (1992). Earp v. Ornoski, 431

F.3d 1158, 1166 (9th Cir. 2005).

If the court determines that the applicant did fail to develop

the factual basis for a claim in state court, the district court

can hold an evidentiary hearing only if the petitioner meets

two demanding requirements: First, the claim must rely on a

rule of constitutional law newly announced by the Supreme

Court and available to habeas petitioners, 28 U.S.C.

§ 2254(e)(2)(A)(I), or must be based on facts that “could not

have been previously discovered through the exercise of due

diligence,” § 2254(e)(2)(A)(ii). Second, even if a petitioner

raises a new claim or one based on a new factual predicate,

a hearing is required only if “the facts underlying the claim

would be sufficient to establish by clear and convincing evi-

dence that but for constitutional error, no reasonable fact-

finder would have found applicant guilty of the underlying

offense.” § 2254(e)(2)(B).

8

Habeas Corpus Rule 6(a) allows parties to “invoke the processes of

discovery available under the Federal Rules of Civil Procedure if, and to

the extent that, the judge in the exercise of his discretion and for good

cause shown grants leave to do so, but not otherwise.”

5508 KEMP v. RYAN

[6] Our first inquiry, then, is whether Kemp “failed to

develop the factual basis of [his] claim in State court proceed-

ings.” § 2254(e)(2). Kemp admits that he did not develop his

claims in the state courts but claims that his course of action

was reasonable, and hence not a “failure” within the meaning

of § 2254(e)(2), because he did not have necessary informa-

tion while his case was still in state court.9 This argument

fails, because the information that, according to Kemp, pro-

vided a new basis for his claim that the officers deliberately

elicited incriminating information, does not actually provide

such a basis. He has only the officer’s testimony in Eastlack,

883 P.2d 999, allegations concerning the proceedings in

Moody, 94 P.3d 1119, and the attorney discipline actions

against prosecutors Peasley and Zawada.

[7] None of these support the assertion that there was a

policy in the Pima County Jail to subtly interrogate the

inmates. The officer in Eastlack only testified that (a)

Eastlack was speaking to another inmate in a loud voice and

refused to lower his voice, (b) he recorded the conversation

because it struck him as interesting that Eastlack was talking

about his case, and (c) note paper was available for whatever

need there might be, not just for recording incriminating state-

ments. Eastlack, 883 P.2d at 1008. Similarly, in Moody, the

officer was sitting approximately fifteen feet from Moody,

who knew he was there and made no effort to lower his voice

or speak softly. 94 P.3d at 1143. The Arizona Supreme Court

held that there was “no surreptitious eavesdropping, record-

ing, or reporting of communications” and that the trial court

could “reasonably have concluded that Moody waived the

9

Arizona, in addition to contesting Kemp’s request for discovery on its

merits, argues that Kemp should have developed his claim in collateral

proceedings in state court, but failed to do so. Arizona also asserts that

Kemp’s assertion that he was entitled to discovery is not properly before

the court because it was not included as an issue in the Certificate of

Appealability. We determine that the denial of discovery is encompassed

within the grant of a certificate on the question of the admission of

Kemp’s statements to the two correctional officers.

KEMP v. RYAN 5509

confidentiality of the communication with his attorney by

making no effort to safeguard the content of his conversa-

tion.” Id. at 1144. Thus, neither case suggests that there was

any policy of deliberately eliciting incriminating information

from inmates.

Furthermore, Kemp’s assertion of a policy of deliberately

eliciting incriminating information is not advanced by the ref-

erence to the attorney discipline actions against Zawada and

Peasley. Peasley’s unethical behavior concerned an officer

stating under oath that he had not known that a person was a

suspect, when he had. See Peasley, 90 P.3d at 769. Zawada

was disciplined for knowingly implying unethical conduct by

expert witnesses without supporting evidence. See Zawada,

92 P.3d at 867. In neither case is there anything that suggests

the existence of a policy of interrogating inmates.10

[8] As the above discussion shows, none of the “evidence”

that Kemp has acquired since his conviction even remotely

supports his assertion of a policy of deliberate subtle elicita-

tion of information by Pima County correctional officers. The

only salient fact Kemp has to buttress his claim is that two

correctional officers spoke with him and both eventually

made a report of that conversation, yet that information was

available to him before his original criminal trial. He thus

possessed all relevant information that would support his

claim well before the conclusion of his state proceedings.

Accordingly, Kemp has “failed” to develop the bases of his

claim and it is barred under § 2254(e)(1) unless he can satisfy

10

Moreover, the officers’ trial testimony was to the contrary. Jackson

testified that he did not recall who initiated his conversation with Kemp,

he did not talk to his supervisor about the conversation, and did not memo-

rialize the conversation for some time. Compton testified that he needed

to know why Kemp was in protective custody and was not trying to ask

Kemp about his case. Both Jackson and Compton testified under oath in

the state court proceedings and there is nothing, other than Kemp’s unsup-

ported allegations, to suggest that either testified in a misleading or dis-

honest manner.

5510 KEMP v. RYAN

the strictures of § 2254(e)(2)(A)-(B).11 Kemp, however, can-

not meet this demanding standard. His claim does not rely on

a new rule of constitutional law available to habeas petition-

ers. § 2254(e)(2)(A)(I). Moreover, because Kemp has not

shown that his failure to develop the factual basis for his

claim in state court was due to the discovery of new informa-

tion not available until after trial, Kemp has also failed to

show a “a factual predicate that could not have been previ-

ously discovered through the exercise of due diligence,”

§ 2254(e)(2)(A)(ii).

[9] Because Kemp is not entitled to an evidentiary hearing,

the district court did not err in denying his request for discov-

ery, as well as his request for a hearing. First, because the dis-

trict court was not authorized to hold an evidentiary hearing

on Kemp’s deliberate elicitation claim, obtaining discovery on

that claim would have been futile. Moreover, Kemp’s claim

of a jail-wide policy of eliciting incriminating statements has

many of the indicia of an improper “fishing expedition,” and

the desire to engage in such an expedition cannot supply

“good cause” sufficient to justify discovery. See Rich v. Cal-

deron, 187 F.3d 1064, 1067-68 (9th Cir. 1999) (noting that in

habeas proceedings discovery is only available “in the discre-

tion of the court and for good cause shown” and is not “meant

to be a fishing expedition for habeas petitioners to explore

their case in search of its existence.”) (internal quotation

marks omitted). Accordingly, the district court’s discovery

denial also was not an abuse of discretion.

11

Even if Kemp had not failed to develop the bases of his claim, he still

would not be entitled to an evidentiary hearing because he cannot satisfy

Townsend’s requirement of “alleg[ing] specific facts which, if true, would

entitle him to relief.” Earp, 431 F.3d at 1167 & n.4 (emphasis added).

Kemp’s vague assertions of a policy of deliberate elicitation cannot, with-

out greater detail or a shred of substantial supporting evidence, amount to

a colorable claim. He therefore would not be entitled to an evidentiary

hearing even if he overcame the “failure” bar of § 2254(e)(2).

KEMP v. RYAN 5511

B. Because Kemp’s Incriminating Statements Were

Admissible, There is Sufficient Evidence to Support

the Imposition of the Death Penalty Under Enmund

and Tison.

[10] Kemp’s argument that there was insufficient evidence

to support the imposition of the death penalty was based on

his claim that his incriminating statements were not admissi-

ble. Our determination that his statements were admissible

disposes of his arguments under Enmund and Tison. We need

not consider whether Kemp’s assertion would have been per-

suasive if the statements were inadmissible, but we do con-

clude that with those statements there is no constitutional

barrier to affirming his sentence.

In Enmund, the Supreme Court held that the death penalty

could not be imposed on a defendant who “aids and abets a

felony in the course of which a murder is committed by others

but who does not himself kill, attempt to kill, or intend that

a killing take place or that lethal force will be employed.” 458

U.S. at 797. In Tison, the Supreme Court stated that “the reck-

less disregard for human life implicit in knowingly engaging

in criminal activities known to carry a grave risk of death rep-

resents a highly culpable mental state, a mental state that may

be taken into account in making a capital sentencing judgment

when that conduct causes its natural, though also not inevita-

ble, lethal result.” 481 U.S. at 157-58.

[11] Here, the evidence, including Kemp’s incriminating

statements, is more than sufficient to support the state courts’

determination that Kemp possessed the requisite culpable

mental state to allow the imposition of a capital sentence.

C. Kemp Was Not Denied Due Process By the Trial

Court’s Failure to Allow Him to Re-voir dire the

Jury on Possible Homosexual Bias.

Kemp asserts that the Due Process Clause of the Fourteenth

Amendment guarantees a defendant not only an impartial

5512 KEMP v. RYAN

jury, but also an adequate voir dire in order to identify

unqualified jurors. See Morgan v. Illinois, 504 U.S. 719, 729

(1991) (“part of the guarantee of a defendant’s right to an

impartial jury is an adequate voir dire to identify unqualified

jurors”). Kemp recognizes that to be constitutionally com-

pelled, it is not enough that voir dire questions might have

been helpful, rather the failure to ask the questions “must ren-

der the defendant’s trial fundamentally unfair.” Mu’Min, 500

U.S. at 425-26.

Kemp asserts that homosexual bias is similar to racial bias.

He notes that in Ham v. South Carolina, 409 U.S. 524, 525-

27 (1973), the Supreme Court held that voir dire on racial bias

was constitutionally compelled where an African American

civil rights advocate’s defense to criminal drug charges was

that he was framed due to his prominence in the community.

Kemp claims his trial was fundamentally unfair because the

trial court refused to allow him to re-voir dire the jury after

the court denied his motions in limine that would have barred

introduction of the subsequent homosexual assault of the hus-

band. Kemp argues that the prosecutor was dilatory in giving

the required notice that he intended to introduce evidence of

Kemp’s homosexual assault of the husband, and was

rewarded for his gamesmanship when the trial court allowed

the evidence to be admitted. Kemp further argues that his

homosexuality was bound up with the conduct of the trial.

The prosecutor argued to the jury that Kemp’s homosexuality

and alleged desire to engage in homosexual activities served

as a motive for the kidnaping and murder of Juarez. The pros-

ecutor introduced the husband’s testimony to prove a homo-

sexual assault, and in his closing argument, told the jury that

Kemp’s homosexual drive was behind the kidnap and murder

of Juarez as well as his attack on the husband.

Kemp contends that it would have been “fundamentally

unfair to have required Kemp’s counsel needlessly to interject

his client’s homosexual orientation into the voir dire, with the

KEMP v. RYAN 5513

potential for prejudice it held, were the trial court ultimately

to have ruled the homosexual assault on [the husband] inad-

missible.”

Kemp has the burden of showing that the Arizona Supreme

Court’s decision upholding the trial court’s decision not to re-

voir dire the jury was contrary to or an unreasonable applica-

tion of clearly established Supreme Court precedent. He can-

not make this showing. Even in the cases cited by Kemp, the

Supreme Court emphasizes that voir dire “is conducted under

the supervision of the court, and a great deal must, of neces-

sity, be left to its sound discretion.” Morgan, 504 U.S. at 729.

See also Mu’Min, 500 U.S. at 427 (“our own cases have

stressed the wide discretion granted to the trial court in con-

ducting voir dire in the area of pretrial publicity and in other

areas of inquiry that might tend to show juror bias”). When

a state court is asked to apply a general standard, such as the

Strickland standard for ineffective assistance or the “funda-

mental unfairness” standard at issue here, state courts get even

greater “leeway” than is standard under our already-

deferential AEDPA framework. Knowles v. Mirzayance. 129

S. Ct. 1411, 1420 (2009); accord Cullen v. Pinholster, 131 S.

Ct. 1388, 1403 (2011); and Harrington v. Richter, 131 S. Ct.

770, 786 (2011).

[12] Kemp has not made either the legal or factual show-

ing necessary to satisfy § 2254(d). Kemp’s attempt to equate

bias against homosexuals with racial prejudice is not persua-

sive. In Ham, the Supreme Court held that an inquiry as to

racial prejudice was constitutionally compelled in that case,

but that “[g]iven the traditionally broad discretion accorded to

the trial judge in conducting voir dire,” Ham’s constitutional

rights were not violated when the judge refused to question

the jury about prejudice against beards. 409 U.S. at 528. In

Mu’Min, the Supreme Court commented

We enjoy more latitude in setting standards for voir

dire in federal courts under our supervisory power

5514 KEMP v. RYAN

than we have in interpreting the provisions of the

Fourteenth Amendment with respect to voir dire in

state courts. But two parallel themes emerge from

both sets of cases: First, the possibility of racial prej-

udice against a black defendant charged with a vio-

lent crime against a white person is sufficiently real

that the Fourteenth Amendment requires that inquiry

be made into racial prejudice; second, the trial court

retains great latitude in deciding what questions

should be asked on voir dire.

500 U.S. at 424. In Ristaino v. Ross, 424 U.S. 589 (1976), the

Supreme Court held that it was not always necessary to voir

dire a jury on racial prejudice, even when the victim was

white and the defendants were black. Id. at 597.

[13] Kemp has not offered any case law holding that

homophobia should be elevated to the same level as racial

prejudice. In light of the Supreme Court’s affirmance of the

discretion granted the trial court and its suggestion that voir

dire on racial prejudice is not always constitutionally com-

pelled, even when the victim and the defendant are of differ-

ent races, Kemp has failed to show that the Arizona Supreme

Court contravened or unreasonably applied “clearly estab-

lished Federal law” in rejecting his challenge to the trial

court’s failure to re-voir dire the jury on possible homosexual

bias.

[14] The record also does not support Kemp’s claim that

he was denied due process. First, a review of the record shows

that trial counsel never asked to re-voir dire the jury. After the

selection of the jury, during argument on outstanding motions,

counsel stated “if we are going to allow this — this onslaught

of homosexual activity I want to re-voir dire the jury.” How-

ever, when the trial court ruled that it would exclude some

evidence of homosexual activity, but would allow in other

evidence, Kemp’s counsel did not ask to re-voir dire the jury.

KEMP v. RYAN 5515

[15] Second, the record supports the determinations by the

Arizona Supreme Court and the district court that Kemp’s

counsel was aware that Kemp’s homosexuality potentially

would be placed before the jury. See Kemp, 912 P.2d at 1288.

Juarez was found in the desert shot in the head twice and

wearing only his socks. Logan’s statements to the police and

the media raised Kemp’s homosexual proclivity as an expla-

nation for Juarez’s attire. Moreover, the prosecutor indicated

well before trial that he was inclined to call the husband and

that he would seek to introduce other evidence of Kemp’s

homosexuality. Even assuming that the trial judge should

have ruled on Kemp’s in limine motion before picking a jury,

Kemp’s counsel cannot reasonably claim that he was not

aware that evidence concerning Kemp’s homosexuality would

be admitted at trial.

[16] Third, despite Kemp’s claim that his alleged homo-

sexuality was central to the case, the critical evidence of the

murder did not concern homosexuality. The critical evidence

consisted of the videotape of Kemp using Juarez’s ATM card,

his admission to Detective Salgado, and his incriminating evi-

dence to the correctional officers. None of this evidence had

anything to do with his homosexuality.12

[17] Fourth, as noted by the district court, the jury did not

participate in the sentencing proceeding. The fact that the sen-

tence was determined by the judge, rather than the jury,

reduces the impact of any latent bias by any member of the

jury. Accordingly, the Arizona Supreme Court’s decision was

not predicated on an unreasonable determination of the facts.

See § 2254(d)(2).

12

Kemp’s argument that his alleged homosexuality was central to the

case undercuts his argument that he was prejudiced by the trial court’s

failure to re-voir dire the jury. If homosexuality was bound up in the case,

then Kemp presumably knew this from the time of the indictment and the

failure to include any question regarding homosexuality in the initially

requested voir dire questions would appear to have been a strategic choice.

5516 KEMP v. RYAN

[18] In sum, Kemp has failed to show that the trial court’s

alleged failure to allow him to re-voir dire the jury as to possi-

ble bias against homosexuals was an unreasonable application

of clearly established Supreme Court law or an unreasonable

determination of the facts. He is not entitled to habeas relief

on this claim.

IV

Kemp has not carried his burden of showing that he is enti-

tled to relief on his appeal from the district court’s denial of

his habeas petition. Because his petition was filed after the

effective date of the AEDPA, relief can only be granted if the

state court unreasonably applied clearly established federal

law or unreasonably determined the facts. 28 U.S. § 2254(d).

Kemp has failed to show that the Arizona Supreme Court

acted unreasonably under either of these criteria in rejecting

his arguments that admission of his incriminating statements

to correctional officers violated his rights under Miranda and

Massiah. He has not shown that the district court abused its

discretion in denying his request for discovery and an eviden-

tiary hearing because he did not establish “specific facts

which, if true, would entitle him to relief.” Earp, 431 F.3d at

1167 n.4. We do not reach Kemp’s claim that if his incrimi-

nating statements are excluded there is insufficient evidence

to support the imposition of the death penalty under

Enmund/Tison, because we hold that the statements are

admissible and that the evidence presented, including the

statements, provides a sufficient basis for the imposition of a

capital sentence. Finally, Kemp has not shown that the trial

court’s alleged failure to re-voir dire the jury as to homosex-

ual bias was contrary to, or an unreasonable application of,

clearly established Supreme Court precedent. See Mu’Min,

500 U.S. at 425-26. Accordingly the district court’s denial of

Kemp’s habeas petition is

AFFIRMED.