Roger Murray v. Dora Schriro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER W. MURRAY, No. 08-99013

Petitioner-Appellant,

D.C. No.

v. 2:03-CV-00775-DGC

DORA SCHRIRO, Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

September 13, 2012—Las Vegas, Nevada

Filed March 17, 2014

Before: Johnnie B. Rawlinson, Jay S. Bybee,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rawlinson

2 MURRAY V. SCHRIRO

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the denial of a 28 U.S.C. § 2254

habeas corpus petition challenging a conviction and capital

sentence for murder.

The panel affirmed the denial of relief as to petitioner’s

change of venue motion, including petitioner’s contention

that there is a heightened obligation to change venue in

capital cases, because the state court’s decision—that the

substantial media coverage of this “sensational, small-town

murder” was not constitutionally prejudicial—was not

contrary to or an unreasonable application of Supreme Court

precedent.

The panel affirmed the denial of relief as to petitioner’s

claim under Batson v. Kentucky, 476 U.S. 79 (1986), because

the state court’s decision that the prosecutor’s race-neutral

explanations for exercising peremptory challenges against

two Hispanic potential jurors was not contrary or an

unreasonable application of Batson.

The panel also affirmed the denial of relief as to

petitioner’s claim that he was denied due process based on a

belated request for access to the sanitized crime scene.

The panel affirmed the denial of relief as to petitioner’s

request for jury instructions on voluntary intoxication

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MURRAY V. SCHRIRO 3

instruction and second degree murder, for lack of supporting

evidence, because the state court’s decision was consistent

with Supreme Court precedent.

The panel held that the state court’s rejection of

petitioner’s claim that the trial court erroneously applied a

causal nexus test to evidence that petitioner’s dysfunctional

childhood could not be considered as an independent

mitigating factor was not contrary to or an unreasonable

application of Supreme Court precedent. The panel explained

that the record reflects that the sentencing court

“meticulously” weighed the mitigating and aggravating

factors and employed the causal nexus test as a permissible

means of weighing the entirety of the mitigating evidence

prior to imposing sentence, and any error did not prejudice

petitioner.

Finally, the panel held that the state court’s denial of

relief on petitioner’s claims of ineffective assistance of

counsel was not contrary to or an unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984), and did not

warrant a remand under Martinez v. Ryan, 132 S. Ct. 1309

(2012). Petitioner claimed that he was denied his right to

counsel due to an irreconcilable conflict, and that counsel was

ineffective by sleeping during the trial and by failing to

interview a critical witness who would have supported the

defense theory that petitioner happened to be in the area

where the murders were committed but did not commit them.

4 MURRAY V. SCHRIRO

COUNSEL

John E. Charland, The Charland Law Firm, Phoenix, Arizona,

for Petitioner-Appellant.

Terry Goddard, Attorney General, Kent E. Cattani, Chief

Counsel, Jeffrey A. Zick (argued), Assistant Attorney

General, Capital Litigation Section, Phoenix, Arizona, for

Respondent-Appellee.

OPINION

RAWLINSON, Circuit Judge:

Petitioner-Appellant Roger Murray (Roger) appeals the

district court’s denial of his petition for habeas corpus

challenging the death sentence imposed following his

convictions for murder and armed robbery.

I. BACKGROUND1

Dean Morrison (Morrison), age 65, and Jacqueline

Appelhans (Appelhans), age 60, operated a store and

restaurant in Grasshopper Junction, a rural area outside

Kingman, Arizona. See State v. Murray, 906 P.2d 542, 553

(Ariz. 1995). On May 14, 1991, between 8:30 and 9:00 a.m.,

an acquaintance discovered the bodies of Morrison and

Appelhans lying face down, in their bathrobes, after being

shot multiple times in the head. See id. at 553–54.

1

The facts are taken from the opinion of the Supreme Court of Arizona.

See State v. Murray, 906 P.2d 542 (Ariz. 1995) (in banc).

MURRAY V. SCHRIRO 5

At the crime scene, a revolver was found on the couch

and a .22 caliber semiautomatic rifle was leaning against the

wall. See id. at 554. Near the bodies were various .22 and

.38 caliber bullets, as well as shotgun pellets. See id. Two

weeks after the crime, Morrison’s sister found a .25 caliber

bullet in the pantry. See id.

In the living room, drawers were pulled out and the

contents scattered. See id. The bedrooms and kitchen were

also ransacked. See id. A .303 rifle was on a bed and $172

was on a desk chair. See id. Morrison’s wallet containing

$800 was undisturbed in his pants pocket. See id. The

drawer from the cash register in the store had been removed,

and the gas register was left on. See id. Morrison’s glasses,

a flashlight, and a set of keys were found on the patio of the

store. See id. In addition, three live .38 caliber bullets were

found near the gas pumps. See id.

Detective Lent of the Mohave County Sheriff’s

Department and another officer found and noted four sets of

footprints, other than those of the investigating officers and

the acquaintance who discovered the bodies. See id. Two

sets of footprints belonged to the victims, a third set was

made by tennis shoes, and the fourth set by western boots.

See id. A different set of three footprints were made by the

tennis shoes, the western boots, and Morrison’s slippers. See

id. Morrison’s footprints indicated resistance by him. See id.

At the time of their arrest, Roger was wearing tennis shoes

and Robert was wearing western boots, both of which were

consistent with the footprints analyzed at the crime scene.

See id. at 553–54.

Morrison’s autopsy revealed that he had suffered a

shotgun blast that shattered his skull. See id. He also

6 MURRAY V. SCHRIRO

suffered two gunshot wounds from a large caliber pistol. See

id. at 554–55. A .38 caliber bullet was recovered from the

back of his neck and large caliber buckshot was removed

from his head. See id. at 555. Found next to Morrison was a

fired .38 caliber bullet. See id. Morrison had lacerations and

abrasions on his face, elbow, forearm, knee, and thigh. See

id. The autopsy revealed that these injuries occurred at

approximately the same time as the gunshot wounds. See id.

Appelhans was shot with at least three different guns. See

id. A shotgun blast shattered her head. See id. Two .38

caliber slugs were removed from her skull. See id. She also

suffered .22 caliber wounds that entered at the back of the

neck and exited her face. See id. Aspiration hemorrhaging

in her lungs indicated a lapse of time between the initial

gunshot and death. See id. The shotgun blast was definitely

lethal, and the .38 caliber bullets were also a possible cause

of death. See id.

Before the bodies were discovered, police officers found

one of Morrison’s tow trucks abandoned on Interstate 40

westbound near Kingman, Arizona. See id. at 553. Roger

and Robert were arrested on unrelated charges on Interstate

40 eastbound near Holbrook, Arizona. See id. The brothers

were driving a Ford sedan with Alabama license plates. See

id. at 554. When an officer attempted to stop the vehicle, the

brothers fled, driving in excess of eighty-five miles per hour.

See id. During their flight, the brothers breached a manned

and armed roadblock. See id. The brothers stopped only

after their vehicle ran off the road into a wash that impeded

further progress. See id. Robert, the driver, threw a .38

revolver containing four bullets from the car. See id. Roger

discarded a loaded .25 semiautomatic pistol. See id.

MURRAY V. SCHRIRO 7

Additionally, Robert had two spent shotgun shell casings in

his pants pocket. See id.

A loaded twelve gauge sawed-off shotgun and shotgun

shells were discovered inside the car. See id. A checkered

cushion cover that matched the cushion on Morrison’s couch

contained rolled coins stamped “Dean’s Enterprises,

Grasshopper Junction, Kingman, Arizona, 86401.” Id. A

blue pillow case contained approximately $1400 in coin rolls

and $3300 in cash. See id. Gloves and a hotel receipt were

also in the vehicle. See id. Records from the hotel indicated

that the brothers had listed a Ford sedan, the description of

which matched the vehicle they were driving at the time of

their arrest, on the hotel registration card. See id. Officers

retrieved from the sedan an atlas with circles around the

locations of two rural establishments, the Oasis and

Grasshopper Junction, which were not otherwise indicated on

the map. See id.

Keys found in Robert’s pants pocket were later identified

as the keys to a pickup truck on Morrison’s property. See id.

A scanner and connecting knob in the sedan fit an empty

bracket in the abandoned tow truck. See id. It was

determined that the casings found at the crime scene and in

Robert’s pocket were fired from the guns possessed by Roger

and Robert. See id. at 555.

Human blood and tissue were found on Robert’s shirt, on

Roger’s pants, and on the cushion cover. See id. The blood

on Roger’s pants could have come from either victim or from

Robert, but not from Roger. See id. The blood on Robert’s

shirt was consistent with that of either victim, but not with the

blood of Roger or Robert. See id. The blood on the cushion

8 MURRAY V. SCHRIRO

could have come from Appelhans, but not from Morrison or

the Murrays. See id. No DNA tests were conducted. See id.

The brothers were indicted for the first degree murders of

Morrison and Appelhans and for the armed robbery of

Morrison. See id. A jury convicted them of all charges. See

id. The first degree murder verdicts were unanimous for both

premeditated murder and felony murder. See id. After

separate sentencing hearings, the trial court found that the

state had proven three aggravating circumstances as to each

defendant: the murders were committed for pecuniary gain,

as defined in A.R.S. § 13-703(F)(5);2 the murders were

especially heinous, cruel or depraved, as provided in § 13-

703(F)(6);3 and the defendants committed multiple

2

A.R.S. § 13-703(F)(5) (1992) provided:

Aggravating circumstances to be considered shall be

the following:

...

(5) The defendant committed the offense as

consideration for the receipt, or in expectation of the

receipt, of anything of pecuniary value.

3

A.R.S. § 13-703(F)(6) (1992) provided:

Aggravating circumstances to be considered shall be

the following:

...

(6) The defendant committed the offense in an

especially heinous, cruel or depraved manner.

MURRAY V. SCHRIRO 9

homicides, as described in § 13-703(F)(8).4 See id. Finding

the mitigation evidence insufficient to outweigh the

aggravating circumstances, the trial court denied leniency for

both defendants and imposed a sentence of death. See id.

The Arizona Supreme Court affirmed the convictions and

sentences. See id.

A. Direct Appeal - Robert and Roger

On October 26, 1995, the Arizona Supreme Court

affirmed the convictions and sentences. See id. at 553. On

direct appeal, the brothers raised five issues: (1) jury

selection; (2) pretrial motions; (3) evidentiary issues;

(4) request for acquittal; and (5) special verdict form. See id.

at 555–65. Roger raised five additional trial issues: (1) jury

sequestration; (2) jury instructions; (3) request for mistrial;

(4) prosecutorial misconduct; and (5) visitation of the crime

scene. See id. at 565–69. In addition, Roger raised three

sentencing issues: (1) objective standards and prosecutorial

discretion; (2) independent review; and (3) aggravating

factors. See id. at 569–71. Roger also raised issues related to

the following statutory mitigation factors: (1) capacity to

appreciate wrongfulness of conduct or conform conduct to

requirements of the law, (2) relatively minor participation;

4

A.R.S. § 13-703(F)(8) (1992) provided:

Aggravating circumstances to be considered shall be

the following:

...

(8) The defendant has been convicted of one or more

other homicides, as defined in § 13-1101, which were

committed during the commission of the offense.

10 MURRAY V. SCHRIRO

(3) age; (4) duress; and (5) no reasonable foreseeability that

his conduct would create a grave risk of death. See id. at

573–77.

The Arizona Supreme Court also addressed the following

nonstatutory mitigation factors that Roger raised during trial:

(6) dysfunctional childhood and family relations; (7) medical

treatment; (8) remorse; (9) drug and alcohol use; and

(10) mental health. See id. at 577–78. For the first time on

direct appeal Roger urged as mitigation factors:

(11) education; (12) residual or lingering doubt; (13) felony

murder instruction; and (14) cooperation. See id. at 578.

1. Jury Selection

The original master jury list used was composed of a one-

and-a-half-year-old driver’s license list in violation of

Arizona law. See id. at 555. Just days before trial was

scheduled to begin, the trial court ordered that a new jury list

be created using both the old driver’s license list and a list of

registered voters. See id. The jury commissioner advised the

trial court that the new list would generate adequate potential

jurors by the date of trial, even though the deadline to respond

was beyond the date trial was scheduled to begin. See id.

Robert and Roger argued that (1) the truncated time to

respond to the jury questionnaire resulted in fewer potential

jurors from more remote portions of the county; and (2) the

one-and-a-half-year-old driver’s license list resulted in fewer

young prospective jurors. See id. Robert and Roger

contended that these infirmities denied them a jury of their

peers because they hailed from a small, rural area in Alabama

and were young at the time of trial. See id. at 555–56. The

Arizona Supreme Court concluded that Robert and Roger

failed to establish the lack of a fair and impartial jury or

MURRAY V. SCHRIRO 11

prejudice. See id. The brothers failed to show that they were

denied the right to have jurors selected from a fair cross-

section of the community, or systematic exclusion of any

discrete segment of the community. See id. at 556. The court

noted that “failure to follow statutory procedures is harmless,

absent some separate showing of prejudice or discrimination

. . . .” Id.

The brothers also contended that the jury commissioner’s

use of standardless exclusions violated their constitutional

rights. See id. However, the Arizona Supreme Court

determined that the jury commissioner, within her discretion,

excused and notified potential jurors in accordance with state

law. See id. at 557. The court concluded that the brothers

were not denied their right to a jury drawn from a fair

cross–section of the community, because the criteria used

were neutral and did not “constitute systematic exclusion.”

Id. (citation omitted).

Finally, Robert and Roger asserted a Batson5 violation

when the prosecution used peremptory challenges to dismiss

the only two Hispanic potential jurors. See id. at 557-58.

The Arizona Supreme Court rejected the Batson challenge,

concluding that the trial court’s acceptance of the

prosecutor’s race-neutral explanation for striking the

Hispanic jurors was not an abuse of discretion. See id.

5

Batson v. Kentucky, 476 U.S. 79 (1986).

12 MURRAY V. SCHRIRO

2. Pretrial Motions

a. Severance

The Arizona Supreme Court concluded that the trial court

did not abuse its discretion in declining to sever the brothers’

cases. See id. at 558. The court noted that “joint trials, are

the rule rather than the exception . . . .” Id. (citation omitted).

The court also pointed out that the crimes were so intertwined

that it would have been virtually impossible to sever the

evidence, because the evidence implicated the brothers

equally. See id. The jury questionnaire screened out

prospective jurors who would have trouble segmenting the

evidence, and the trial court instructed the jury to consider the

evidence separately against each defendant. Under these

circumstances, the Arizona Supreme Court found no

prejudice. See id.

b. Change of Venue

The Arizona Supreme Court determined that Robert and

Roger failed to prove presumed or actual prejudice based on

the denial of their request for a change of venue due to

pretrial publicity. See id. at 559. The Court emphasized that

the brothers failed to show any pretrial publicity that was so

outrageous that the trial was “utterly corrupted.” Id. (citation

omitted). Any security measures were largely effectuated

when jurors were unlikely to be present. See id. Only

prospective jurors who pledged to decide the case solely on

the evidence were empaneled, and empaneled jurors were

repeatedly admonished to avoid media coverage. See id.

After reviewing this record, the Arizona Supreme Court

affirmed the trial court’s denial of the requested venue

change. See id.

MURRAY V. SCHRIRO 13

c. Hybrid Representation

After noting that there is no right to hybrid representation

(some combination of self-representation and counsel), the

Arizona Supreme Court held that the trial court acted within

its discretion when it denied the brothers’ requests for hybrid

representation in the absence of irreconcilable conflict or

incompetent counsel. See id. at 560.

d. Library Access

Citing Bounds v. Smith, 430 U.S. 817 (1977), the Arizona

Supreme Court held that because the brothers were provided

with counsel throughout the proceedings, their constitutional

right to access the court was afforded, regardless of whether

they were able to personally access legal materials. See id. at

561.

3. Evidentiary Issues

The brothers challenged the admissibility of crime scene

photographs and footprint comparisons, and argued that the

court improperly prevented them from impeaching a witness.

See id. at 561–64. The Arizona Supreme Court determined

that the challenged photographs were relevant to the case and

were not unduly inflammatory. See id. at 561–62. The court

also rejected the challenge to footprint comparisons made by

a detective, holding that the trial court did not abuse its

discretion in qualifying the detective as an expert where the

detective had extensive tracking experience in criminal

investigations and had previously been qualified as an expert

in state and federal court. See id. at 562–63. Any issue of

proper methodology “went to the weight rather than

admissibility.” Id. at 563 (citation omitted).

14 MURRAY V. SCHRIRO

Finally, the brothers contended that the trial court

impermissibly precluded impeachment of the detective who

testified regarding the footprint evidence. See id. at 563–64.

During cross-examination, the detective admitted that he had

previously lied under oath. See id. at 563. After hearing

argument in chambers, the trial court determined that the

relevant extrinsic evidence of the detective’s truthfulness (or

lack thereof) was minimally probative, but far outweighed by

its prejudicial and confusing nature. See id. The trial court

was of the view that admission of the extrinsic evidence to

impeach the detective would essentially result in the trial of

a collateral matter. See id. at 563–64. The Arizona Supreme

Court concluded that the trial court did not abuse its

discretion in applying the Arizona Rules of Evidence. See id.

at 564.

4. Motion for Acquittal

Robert and Roger moved for acquittal, arguing that there

was not substantial evidence to support a conviction. See id.

at 564. The Arizona Supreme Court concluded that there was

substantial evidence supporting the robbery and felony

murder convictions, including signs of a struggle, to establish

that the defendants used force to rob the victims. See id. The

court also clarified that the prosecution did not need to

establish that Roger killed or intended to kill to prove felony

murder under Arizona law. See id. at 564-65. Rather, the

prosecution need only establish that a principal or accomplice

attempted to commit or committed a robbery and a person

was killed during the commission of and in furtherance of the

robbery. See id. at 565.

Further, the court affirmed the existence of substantial

evidence supporting the convictions for first-degree murder,

MURRAY V. SCHRIRO 15

namely evidence establishing that Robert and Roger were

present at the crime scene and participated in the crimes,

including evidence from the crime scene found on the

brothers and the execution-style murders. See id.

Finally, the Arizona Supreme Court held that the trial

court issued a special verdict that was in the record, as

required by law, although not specifically titled “Special

Verdict.” Id.

B. Direct Appeal - (Trial Issues)

1. Jury Sequestration

Although the trial court denied Roger’s motion to

sequester the jury, the jury was repeatedly admonished to

avoid media coverage. See id. at 566. Roger failed to assert

or establish that the jurors failed to follow the trial court’s

admonitions. See id. The Arizona Supreme Court concluded

that the trial court did not abuse its discretion when it denied

the sequestration request. See id.

2. Willits Jury Instruction6

The Arizona Supreme Court concluded that the evidence

Roger asserted that the state failed to preserve, such as the

types of shoes worn by others at the crime scene and fast-

food remnants, would not have tended to exonerate him. See

6

State v. Willits, 393 P.2d 274, 276, 279 (Ariz. 1964) (in banc), requires

a jury instruction when the state destroys material evidence that would

allow the jury to infer that the facts implicated by the material evidence

are against the state’s interest.

16 MURRAY V. SCHRIRO

id. Therefore, the trial court acted within its discretion when

it denied the requested Willits instruction. See id.

3. Intoxication Instruction

Roger asserted that he was entitled to an intoxication

instruction, because on the night of the murders, he and

Robert had been drinking at a local bar. See id. However, the

manager of the bar testified that the brothers were “handling

themselves very well.” Id. In view of the trial court’s finding

that there was no evidence that alcohol consumption affected

the brothers’ “ability to think, function, or form intent,” the

Arizona Supreme Court concluded that Roger failed to meet

his burden of showing that consumption of alcohol negated

an element of the crime. Id. at 566–67 (citations omitted).

4. Second-Degree Murder/Lesser Included Offense

Instruction

The Arizona Supreme Court explained that an instruction

on second-degree murder would pertain, if at all, only to the

premeditated murder count and only if supported by the

evidence. See id. at 567. Due to the substantial evidence of

premeditation in the record, the Arizona Supreme Court

agreed with the trial court that an instruction on second-

degree murder was contraindicated because the jury could

have only rationally drawn the inference that Robert and

Roger premeditated the murders. See id.

5. Request for a Mistrial

Roger’s request for a mistrial stemmed from witness

statements referring directly or indirectly to his in-custody

status. See id. at 567. The Arizona Supreme Court concluded

MURRAY V. SCHRIRO 17

that the jurors were already aware that the brothers had been

arrested and were in custody at some point prior to trial. The

court ruled that such knowledge was not prejudicial and did

not deprive the brothers of their right to a presumption of

innocence. See id. at 568.

6. Prosecutorial Misconduct

Roger alleged the following instances of misconduct:

(1) A detective’s joking about the Federal

Bureau of Investigations [FBI] while

testifying. The objection to the FBI comment

was sustained based on irrelevance and the

jury was instructed to disregard it.

(2) Discussion by officers in the courthouse

library that defendants were using the “fecal

defense”-throwing up anything and hoping

something sticks. The trial court thoroughly

probed this issue and concluded that there had

been no discussion of the evidence and that

the jurors were unlikely to have heard the

discussion.

(3) The prosecutor’s alleged joking with a

witness in front of the jury about whether a

bartender at the Temple Bar had gone fishing

in Mexico. Defendant waived this issue for

failure to object at trial. See State v. White,

564 P.2d 888, 892 (Ariz. 1977).

(4) The prosecutor’s joking with someone

while on a cigarette break about being

18 MURRAY V. SCHRIRO

subpoenaed, while two jurors stood nearby.

The prosecutor himself brought the incident to

the court’s attention; neither defendant

objected [n]or moved for a mistrial in the trial

court. Thus, defendant waived this issue.

(5) In closing argument, the prosecutor’s

referring to defendants as “the boys from

Alabama.” Defendant waived this issue by

failing to object at trial. See State v. Hankins,

686 P.2d 740, 747 (Ariz. 1984).

(6) The prosecutor’s stating that a .25 caliber

bullet found on the premises had been fired by

one of the brothers. The argument was

permissible because a ballistics expert found

that the bullet matched the pistol Roger threw

from the car.

(7) Reference in closing argument by the state

to defendants feeling a “sick excitement” in

committing the murders. The trial court

cautioned the prosecutor and the prosecutor

made no more such references.

Id.

The Arizona Supreme Court determined that the

prosecutor’s conduct did not negatively influence the trial

because Roger failed to establish that the prosecutor’s actions

affected the jury’s verdict in any way. See id.

MURRAY V. SCHRIRO 19

7. Visitation of the Crime Scene

The Arizona Supreme Court determined that the trial

court did not abuse its discretion by denying Roger’s request

to revisit the crime scene. See id. at 569. On the fourth day

of trial, more than a year after the crime was committed,

Roger filed a motion to revisit the crime scene. See id. (citing

Ariz. R. Crim. P. 15.1(e)). The trial court denied the motion

because Roger had failed to show a substantial need for the

second inspection. See id. Roger’s attorney had previously

examined the crime scene with investigators, and the attorney

and investigators were still available. Additionally, the crime

scene had been cleaned. See id.

C. Direct Appeal - (Sentencing Issues)

1. Objective Standards and Prosecutorial Discretion

The Arizona Supreme Court noted that Roger’s

arguments regarding the alleged lack of objective standards

for imposing the death penalty and the broad discretion

afforded the prosecution in seeking the death penalty had

been rejected in previous cases. See id. (citing State v.

Salazar, 844 P.2d 566, 578 (Ariz. 1992) (in banc); State v.

Correll, 715 P.2d 721, 737 (Ariz. 1986) (in banc); State v.

Harding, 670 P.2d 383, 397 (Ariz. 1983) (in banc)).

2. Independent Review

The Arizona Supreme Court explained that it conducts an

independent review of death sentences for error, determines

whether the aggravating circumstances were proven beyond

a reasonable doubt, considers mitigating circumstances, and

weighs the aggravating factors and the mitigating

20 MURRAY V. SCHRIRO

circumstances anew to decide whether leniency is warranted.

See id.

3. Aggravating Factors

Roger challenged all three of the following aggravating

factors found by the trial court:

A. Defendant committed the offense as

consideration for the receipt, or in expectation

of the receipt, of anything of pecuniary value.

A.R.S. § 13-703 (F)(5).

B. Defendant committed the offense in an

especially heinous, cruel, or depraved manner.

A.R.S. § 13-703 (F)(6).

C. Defendant has been convicted of one or

more other homicides which were committed

during the commission of the offense. A.R.S.

§ 13-703 (F)(8).

Id.

The Arizona Supreme Court concluded that there was

substantial evidence to establish that Roger committed the

crime for pecuniary gain, i.e., that there was financial

motivation. See id. Among other evidence, a number of

items, including cash were taken. See id. at 569–70. The

record also supported a finding that the crimes were

especially heinous, cruel, or depraved. See id. at 570. The

victims were kidnapped at gunpoint, were taken by surprise,

and were aware of their imminent demise. See id. The signs

of struggle and fear, e.g., Appelhans clutching Morrison’s

MURRAY V. SCHRIRO 21

arm, established mental anguish as well as pain and suffering.

See id. Finally, the elderly, helpless victims were subjected

to gratuitous violence and the murders were senseless. See id.

at 571.

4. Multiple Murders

Citing its precedent, the Arizona Supreme Court rejected

Roger’s argument that double jeopardy foreclosed application

of the multiple homicide aggravating factor where the

murders were part of the same criminal offense. See id.

(citing State v. Glenway, 823 P.2d 22, 34–35 (Ariz. 1991) (in

banc)).

5. Mitigating Circumstances

The Arizona Supreme Court reviewed and addressed the

following mitigating circumstances presented by Roger:

a. Capacity to Appreciate Wrongfulness of

Conduct or Conform Conduct to

Requirements of the Law

After discussing Roger’s juvenile problems, head injuries,

hyperactivity, and substance abuse, the Arizona Supreme

Court determined that Roger failed to establish that these

factors, either individually or in combination, affected his

capacity to appreciate the wrongfulness of his conduct or to

confirm his conduct to the requirements of the law. See id. at

573–76.

22 MURRAY V. SCHRIRO

b. Relatively Minor Participation

Roger asserted that Robert’s jailhouse letters to him, in

which Robert admitted participating in the killing of

Morrison and Appelhans, exculpated him. Roger also

referenced the lack of evidence establishing that he fired any

of the guns. See id. at 576. The Arizona Supreme Court

disagreed, referencing evidence at trial implicating both

Robert and Roger, including footprint evidence, the fact that

both defendants were armed when captured, and the fact that

the victims suffered numerous bullet wounds from different

weapons. See id. Additionally, the Court noted that Robert’s

jailhouse letters did not “indicate the role Roger did or did not

play.” Id. The Court determined that Roger failed to prove

by a preponderance of the evidence that his role in the crimes

was minor. See id.

c. Age - (Twenty Years Old)

The Arizona Supreme Court rejected Roger’s reliance on

his relative youth as a mitigating factor. The Court reasoned

that Roger’s intelligence, previous criminal history,

experience with law enforcement, the extent of his

involvement with the crimes, and the deliberate nature of the

murders militated against concluding that the commission of

the crimes was due to a lack of maturity. See id. at 576–77.

In sum, Roger failed to prove “how his age impaired his

judgment in committing the crimes.” Id. at 577 (citation

omitted).

MURRAY V. SCHRIRO 23

d. Duress

The Arizona Supreme Court concluded that Roger was

not under duress from Robert and had failed to show that his

desire to please his brother rose to the level of duress. See id.

e. No Reasonable Foreseeability that Conduct

Would Create a Grave Risk of Death

According to the Arizona Supreme Court, Roger’s

asserted immaturity, dependent personality, and idolizing of

his brother, even if true, would not negate the foreseeability

that use of guns to commit a robbery would create a grave

risk of death. See id.

f. Dysfunctional Childhood and Family

Relations

Although Roger established that his childhood was

dysfunctional, the Arizona Supreme Court concluded that “[a]

difficult family background alone is not a mitigating

circumstance.” Id. (citation omitted). The court held that

“[f]amily background is a mitigating circumstance only if a

defendant can show that something in that background had an

effect or impact on his behavior that was beyond the

defendant’s control.” Id. (citation omitted). In sum, the court

concluded that the fact of Roger’s dysfunctional childhood

was not a mitigating circumstance because “he fail[ed] to

show how [his] background impacted his behavior at

Grasshopper Junction.” Id.

24 MURRAY V. SCHRIRO

g. Medical Problems

The Arizona Supreme Court found “nothing mitigating in

connection with [Roger’s] claimed alleged medical problems

as a child.” Id. at 578.

h. Remorse

The Arizona Supreme Court concluded that Roger failed

to establish that he was remorseful, noting specifically

Roger’s letter to the trial judge, written just prior to the

aggravation/mitigation hearings, that denied responsibility for

the crimes. See id.

i. Drug and Alcohol Use

The Arizona Supreme Court found that Roger’s alcohol

and drug use were not mitigating because the substance abuse

was self-reported and largely uncorroborated, and because the

physical activity at the crime was inconsistent with sensory

impairment. See id.

j. Mental Health

The Arizona Supreme Court determined that Roger’s

mental health issues, including hyperactivity and potentially

other mental disorders, were entitled to “some nonstatutory

mitigating weight.” Id. However, the court concluded that

Roger “fail[ed] to prove that he suffer[ed] from brain

damage.” Id.

MURRAY V. SCHRIRO 25

k. Education

The Arizona Supreme Court rejected Roger’s argument

that because he became a paralegal despite having dropped

out of high school, he was able to “reside within our society

and abide by the rules . . .” Id. The Court noted that Roger’s

accomplishments did not prevent commission of the heinous

crimes against Morrison and Appelhans. See id.

l. Residual or Lingering Doubt

The Arizona Supreme Court concluded that there was no

lingering doubt regarding Roger’s actual participation in the

crime. Id.

m. Felony Murder Instruction

The Arizona Supreme Court explained that a felony

murder instruction “can only be mitigating where there is

some doubt regarding defendant’s specific intent to kill. . . .”

Id. (citation omitted). Because there was a premeditation

finding, Roger’s specific intent was not in doubt. See id.

n. Cooperation

Roger complained that the trial court failed to take his

cooperation into consideration. See id. Roger relied on the

fact that he refrained from shooting the police officer who

apprehended him. See id. The Arizona Supreme Court held

that refraining from killing one more person cannot possibly

demonstrate cooperation as a mitigating factor. See id.

26 MURRAY V. SCHRIRO

6. Weighing Aggravation and Mitigation

The Arizona Supreme Court described the “very detailed

special verdicts” completed by the trial court and concluded

that the record reflected careful consideration of all the

evidence and careful weighing of the mitigating and

aggravating factors. See id. at 579.

7. State’s Rebuttal Evidence

Roger contended that the trial court improperly allowed

the admission of evidence supporting the aggravating factors

after the defense had rested its mitigation case. See id.

However, the Arizona Supreme Court concluded that the state

was entitled to call witnesses to rebut the mitigation evidence

presented by Roger. See id. Regardless, the Arizona

Supreme Court determined that the trial court had carefully

reviewed the mitigating evidence, and “[t]here [wa]s no

suggestion in the record that the [trial] judge considered the

rebuttal evidence in connection with anything but mitigation.

Id.

D. Post-Conviction Proceedings

Following his unsuccessful direct appeal, Roger filed a

petition for post-conviction relief (PCR). Roger asserted that

he had a genuine and irreconcilable conflict with his trial

counsel and the trial court’s refusal to appoint new trial

counsel was an abuse of discretion that effectively denied

Roger’s right to counsel. Roger also advanced ineffective

assistance of counsel (IAC) claims alleging: (1) trial

counsel’s sleeping during substantial portions of the trial;

(2) trial counsel’s failure to present the testimony of Jack

Potts, M.D. at the mitigation hearing; (3) trial counsel’s

MURRAY V. SCHRIRO 27

failure to obtain neurological or neuropsychological

evaluations of Roger prior to sentencing; (4) trial counsel’s

failure to call an exculpatory witness; (5) trial counsel’s

ignorance of rehabilitation as a mitigating factor; (6) trial

counsel’s failure to properly pursue a discovery violation by

the prosecution; (7) trial counsel’s failure to properly

discredit the detective who provided footprint testimony; and

(8) trial counsel’s calling of witnesses who were prejudicial

to the defense. Roger’s remaining claims challenged the trial

court’s construction of nonstatutory mitigating evidence and

the constitutionality of Arizona’s death penalty system.

Following a hearing pursuant to Rule 32 of the Arizona

Rules of Criminal Procedure, the PCR court set an

evidentiary hearing for the claims asserting ineffective

assistance of counsel for sleeping and for failing to obtain a

neurological or neuropsychological examination. The

balance of the claims were deemed precluded or were

summarily rejected.

The PCR court appointed a psychologist and

neuropsychologist to evaluate Roger prior to the evidentiary

hearing. Following the evidentiary hearing, the PCR court

denied relief on the IAC claim asserting that counsel slept

throughout major portions of the trial.7

The Arizona Supreme Court summarily denied Roger’s

subsequent petition for review, except as to Roger’s claim

7

After being examined by the court appointed psychologists, Roger

notified the PCR court that he did not intend to rely on those experts.

Subsequently, the State filed a motion to dismiss Roger’s IAC claim for

trial counsel’s failure to obtain a neurological or neuropsychological

examination, which the PCR court granted.

28 MURRAY V. SCHRIRO

that he was entitled to a jury determination of the aggravating

factors. Review of that claim was consolidated with the

claims of other similarly situated inmates, and relief was

denied. See State v. Towery, 64 P.3d 828 (Ariz. 2003) (en

banc). Roger filed a petition for writ of certiorari to the

United States Supreme Court, which he later withdrew.

Roger then filed a habeas petition in the federal district court.

E. Federal Habeas Petition

The fifty-six claims in Roger’s federal habeas petition

largely mirrored those raised in Roger’s direct appeal. See

Murray, 906 P.2d at 553–78.

Roger voluntarily withdrew the following nine claims as

duplicative:

• Claim 43 (trial court’s failure to file a written special

verdict);

• Claim 47 (IAC - failure to obtain neurological and

neuropsychological evaluation);

• Claim 49 (IAC - failure to follow-up on objection to

disclosure violations);

• Claim 50 (IAC - failure to discredit footprint expert);

• Claim 51 (IAC - called witnesses prejudicial to

defense);

• Claim 52 (denial of sentencing jury);

• Claim 54 (arbitrary imposition of the death penalty);

MURRAY V. SCHRIRO 29

• Claim 55 (cruel and unusual punishment); and

• Claim 56 (nondeterrence of execution).

The district court dismissed the following claims as

procedurally barred:

• Claim 8 (footprint evidence);

• Claim 9 (impeachment of footprint expert);

• Claim 20 (viability of aggravating factors);

• Claim 21 (application of aggravating factors);

• Claim 23 (lack of funding for additional experts);

• Claim 24 (unconstitutionality of death penalty);

• Claim 25 (unconstitutionality of death penalty);

• Claim 26 (unfair balancing of aggravating and

mitigating factors);

• Claim 27 (vagueness of heinous, cruel or depraved

aggravating factor);

• Claim 28 (lack of meaningful review of sentence);

• Claim 29 (limitation on nonstatutory mitigation

evidence);

• Claim 30 (IAC -failure to impeach footprint expert);

30 MURRAY V. SCHRIRO

• Claim 31 (IAC - failure to move for severance);

• Claim 32 (IAC - failure to secure experts);

• Claim 33 (IAC - failure to prepare for

Aggravating/Mitigation Hearing);

• Claim 35 (violation of rights under International

Law);

• Claim 36 (physical and psychological torture during

execution);

• Claim 39 (improper consideration of evidence

regarding aggravating factors);

• Claim 44 (irreconcilable conflict with attorney);

• Claim 46 (IAC - failure to call mental health expert);

and

• Claim 53 (failure to channel sentencing discretion).

District Court Discussion of Claims on the Merits

Claim 1 - Change of Venue

The district court determined that the Arizona Supreme

Court’s decision denying relief was not contrary to or an

unreasonable application of Supreme Court precedent, nor

was it based on an unreasonable determination of the facts.

The district court referenced the two types of prejudice

resulting from pretrial publicity-presumed prejudice and

actual prejudice. Because Roger did not argue actual

MURRAY V. SCHRIRO 31

prejudice, the district court focused on presumed prejudice,

albeit noting that the Arizona Supreme Court’s decision

rejecting actual prejudice was not contrary to or an

unreasonable application of Supreme Court precedent. The

district court acknowledged that presumed prejudice is

established when pretrial publicity utterly corrupts the trial

atmosphere or incites a public passion that makes a fair trial

unlikely.

While the district court recognized that this case garnered

significant media attention, it determined that the nature of

the press coverage was not unduly pervasive or inflammatory.

Rather, the media reports were factual recitations of the crime

and the ensuing criminal proceedings. The district court

therefore concluded that the Arizona Supreme Court did not

unreasonably apply clearly established federal law in

rejecting Roger’s claim of presumed prejudice, and that the

state court’s decision was not based on an unreasonable

determination of the facts.

Claim 2 - Jury Sequestration

The district court noted that because there is no

constitutional right to jury sequestration, to obtain habeas

relief, Roger was required to show that he was prejudiced by

the failure to sequester the jury.

The occurrences referenced by Roger to support his claim

of prejudice included the security measures in effect during

trial, negative comments made by police officers outside the

courtroom, a conversation involving the prosecutor that may

have been overheard by two jurors, and the attendance at trial

of a juror’s spouse. The district court relied on the evidence

presented to the state trial court that no jurors were exposed

32 MURRAY V. SCHRIRO

to the officers’ comments, that the jurors were admonished to

disregard any comments by the prosecutor during the break,

and that the juror and his spouse did not discuss the case.

Because the state court’s determination that Roger failed to

establish prejudice withstood AEDPA review, the district

court denied habeas relief on this claim.

Claim 3 - Severance

The state court’s conclusion that Roger failed to establish

prejudice from the joint trial, the district court held, was not

based on an unreasonable application of clearly established

federal law or an unreasonable determination of the facts.

There was no indication that the defenses were antagonistic

or mutually exclusive. Neither brother testified and no

inculpatory statements were introduced. The nature and

effect of the overwhelming evidence, which was admissible

against both brothers, would not have changed if the trial

were severed. The district court thus concluded that this

claim was without merit, and denied relief.

Claim 4 - Jury Selection Process

The district court rejected this claim because Roger failed

to demonstrate that young people or persons living in rural

areas are distinctive groups as is required to establish

underrepresentation or exclusion of a cognizable group from

the jury selection process. The Arizona Supreme Court had

rejected this claim on the basis of Duren v. Missouri,

439 U.S. 357 (1979). Because Roger could not show that

either Duren or any other clearly established Supreme Court

authority recognized young people or people living in rural

areas as distinctive groups for fair-cross section purposes, the

MURRAY V. SCHRIRO 33

district court concluded that the state court had not

unreasonably applied clearly established federal law.8

Claim 5 - Fair Cross-Section/Equal Protection

The district court determined that, as with Claim 4, the

Arizona Supreme Court did not unreasonably apply United

States Supreme Court precedent by concluding that Roger

failed to establish that a distinctive group was improperly

excluded from the jury pool.

Claim 6 - Batson

The state court’s determination that the prosecutor’s

reasons for striking each of the challenged jurors were race-

neutral, the district court concluded, was valid under AEDPA.

One juror was excused due to the state’s criminal

investigation of her relatives and the other juror was excused

because the prosecutor knew the juror socially and was

concerned that he might be too willing to agree to avoid

discord. The district court determined that the Arizona

Supreme Court neither unreasonably applied Batson nor

based its decision on an unreasonable determination of the

facts in the record.

8

In Duren, the United States Supreme Court held that a defendant in a

criminal case has a Sixth Amendment right to a jury pool that constitutes

a fair cross-section of the community. See Duren, 439 U.S. at 359–60.

This constitutional right is violated only if a distinctive group is excluded

from jury service. See id. at 364.

34 MURRAY V. SCHRIRO

Claim 7 - Revisiting the Crime Scene

The district court determined that Roger did not establish

prejudice due to the trial court’s denial of his request to

revisit the crime scene more than a year after the crime was

committed and after the crime scene had been cleaned. The

district court concluded that Roger failed to show that the

evidence sought was material or that the verdict would have

been different, particularly in view of the overwhelming

evidence of guilt. The district court denied relief on this

claim, affirming the state court’s determination under

AEDPA.

Claim 10 - Hybrid Representation

The district court concluded that the Arizona Supreme

Court’s decision denying Roger’s hybrid representation claim

was not contrary to or an unreasonable application of

Supreme Court precedent. Roger did not assert that the state

court’s ruling violated his constitutional rights in any

particular fashion. Additionally, the district court observed

that Roger failed to cite any clearly established law

supporting his claim of entitlement to hybrid representation.

The district court denied relief on this claim.

Claim 11 - Gruesome Photographs

The district court found that Roger was not prejudiced by

the photographs of the victims and of the crime scene that

were admitted into evidence. The court reasoned that even if

the pictures were improperly admitted, the error was not

prejudicial and did not rise to the level of a due process

violation because the evidence against Roger was

overwhelming. The district court denied relief, concluding

MURRAY V. SCHRIRO 35

that the state court’s determination was neither contrary to,

nor an unreasonable application of, clearly established federal

law.

Claim 12 - Prosecutorial Misconduct

The district court determined that a detective’s joking

about the FBI while testifying, when viewed in the context of

the entire proceedings, “was innocuous and could have had

no effect on the fairness of the trial,” particularly since the

jury was instructed to disregard the offending comments. The

district court also determined that the prosecutor’s statement

during closing argument tying the .25 caliber shell found at

the crime scene to Roger was a permissible inference that the

prosecutor was allowed to draw based on the evidence.

Regarding the prosecutor’s reference to the brothers as the

“boys from Alabama” during closing argument, the district

court determined that the “prosecutor’s use of this rhetorical

device did not carry the connotations [Roger] ascribe[d] to it

and did not deprive him of a fair trial.”

Finally, the district court determined that the comments

made by the prosecution “that the defendants experienced a

‘sick excitement’ and ‘some sick crazy high’” as they

committed the crimes did not result in a due process

violation. The trial court neutralized any inappropriateness

by instructing the jury not to be influenced by passion or

prejudice, and that statements of counsel are not evidence.

The district court denied relief because it determined that the

Arizona Supreme Court did not unreasonably apply clearly

established federal law holding that inappropriate remarks

must infect the trial with unfairness to warrant reversal.

36 MURRAY V. SCHRIRO

Claim 13 - Reference to In-Custody Status

Roger objected and moved for a mistrial after reference

was made to blood being drawn from Roger by a “nurse in

jail.” Another reference was made to the fact that Roger’s

clothing was taken while he was in custody. The trial court

sustained the objection to the testimony regarding blood

being drawn and struck the answer. Roger’s motion for a

mistrial was denied.

The district court agreed with the state court that these

isolated references to Roger’s in-custody status did not

warrant a mistrial. The district court concluded that relief

was not warranted under Estelle v. Williams, 424 U.S. 501

(1976), and Roger cited no Supreme Court case supporting

the proposition that the mere mention of the fact that a

defendant is in custody constitutes a due process violation.

Accordingly, the district court denied relief on this claim

under AEDPA.

Claim 14 - Sufficiency of Evidence

Roger challenged the sufficiency of evidence supporting

his armed robbery and felony murder convictions. The

district court found that the state court did not unreasonably

apply clearly established federal law, Jackson v. Virginia,

443 U.S. 307 (1979), in concluding that a rational factfinder

could determine from the evidence that Roger committed

armed robbery and that the deaths of the victims occurred

during the course of or in furtherance of the armed robbery.

Nor was the state court’s conclusion an unreasonable

determination of the facts, given the use of several weapons,

evidence of a struggle, and the fact that property was taken.

The district court, therefore, denied relief on this claim.

MURRAY V. SCHRIRO 37

Claim 15 - Jury Instruction Addressing the State’s

Failure to Preserve Evidence

Roger alleged that the trial court violated his rights by

failing to give a jury instruction regarding the state’s failure

to preserve evidence. The district court opined that Roger

had failed to establish that the officers who conducted the

investigation acted in bad faith with respect to gathering,

preserving, and analyzing the evidence. The witnesses for the

state all gave credible explanations for the methods used to

gather and preserve evidence, showing at most negligence on

the part of investigators. More importantly, Roger failed to

establish that the exculpatory nature of any unpreserved

evidence was apparent before it was destroyed, or that the

evidence was material. Because the state court did not

unreasonably apply clearly established federal law in

rejecting this claim, see California v. Trombetta, 467 U.S.

479, 488 (1984), the district court denied relief under

AEDPA.

Claim 16 - Intoxication Instruction

The district court determined that Roger was not denied

a fair trial when the trial court declined to give an intoxication

instruction to the jury. The trial court found, and the Arizona

Supreme Court affirmed, that Roger was drinking at a bar

prior to the murders, but that there was no evidence that he

was in fact intoxicated. Reviewing the state court decision

under AEDPA, the district court presumed that finding to be

correct and concluded that Roger had not overcome that

presumption of correctness with clear and convincing

evidence. The district court thus denied this claim.

38 MURRAY V. SCHRIRO

Claim 17 - Lesser Included Offense Instruction

The district court found that the state court properly

applied Supreme Court precedent, Hopper v. Evans, 456 U.S.

605, 611 (1982), in concluding that there was insufficient

evidence in the record to persuade a rational factfinder that

Roger committed second degree murder rather than first

degree murder, thereby necessitating a lesser included offense

jury instruction. The district court also noted that the

evidence of premeditation was overwhelming.

Claim 18 - Unconstitutionality of Arizona’s Felony

Murder Statute

The district court determined that there is no clearly

established federal law holding that a felony murder statute

must include lesser offenses. Citing Hopkins v. Reeves,

524 U.S. 88, 96–97 (1998), the district court determined that

Supreme Court precedent was to the contrary.9 The district

court denied this claim.

Claim 19 - Unconstitutionality of Sentence Imposition by

Judge Under State Law

The district court denied this claim as foreclosed by

Schriro v. Summerlin, 542 U.S. 348, 358 (2004), which held

that the Supreme Court’s decision in Ring v. Arizona,

9

In Hopkins, the United States Supreme Court held that there is no

requirement to give an instruction for second degree murder when the

defendant is charged with capital felony murder, unless second degree

murder is a lesser included offense of felony murder under state law.

524 U.S. at 94–97.

MURRAY V. SCHRIRO 39

536 U.S. 584 (2002), requiring jury sentencing in capital

cases was not retroactive.

Claim 22 - Double Jeopardy

Roger took the position that applying the aggravator for

multiple victims subjected him to double jeopardy. The

district court explained that Roger was not being punished

twice for the same crime. Rather, there were two crimes, two

convictions, and two sentences. Citing Poland v. Arizona,

476 U.S. 147, 156 (1986), and Lowenfield v. Phelps, 484 U.S.

231, 244–46 (1988), the district court clarified that statutory

aggravating factors are not offenses for double jeopardy

purposes, but are used to guide the jury in determining an

appropriate sentence in capital cases. The district court

concluded that the Arizona Supreme Court’s decision on this

issue was not contrary to or an unreasonable application of

clearly established federal law on double jeopardy.

Claim 34 – Lack of Legitimate Penological Purpose

Served by Delayed Execution

The district court denied this claim as a matter of law

because the United States Supreme Court has not determined

that a lengthy incarceration prior to execution constitutes

cruel or unusual punishment. The district court also observed

that several circuit courts, including the Ninth Circuit, have

held that prolonged incarceration prior to execution does not

violate the Eighth Amendment. See, e.g., McKenzie v. Day,

57 F.3d 1493, 1493–94 (9th Cir. 1995) (en banc).

40 MURRAY V. SCHRIRO

Claim 37 – Incompetence at Time of Execution

Roger asserted that he would be incompetent at the

anticipated time of execution. The district court dismissed

this claim without prejudice as premature, with consent of the

parties.

Claim 38 - Access to the Law Library

The district court found that the Arizona Supreme Court

did not unreasonably apply clearly established federal law

when it decided that Roger was provided adequate assistance

from persons trained in the law, satisfying his constitutional

right of access to the courts. The district court ruled that the

state court’s ruling was consistent with Bounds, 430 U.S. at

828, which held that constitutional access to the courts is

satisfied by access to a law library or adequate assistance

from a person trained in the law.

Claims 40/41 - Statutory and NonStatutory Mitigation

Evidence Outweighing Aggravating Factors

The district court dismissed the portion of these claims

asserting violations of the Fifth, Sixth, and Seventh

Amendments as procedurally barred. The district court also

denied relief on the portion of Roger’s claim asserting under

the Eighth and Fourteenth Amendments, that the sentencing

court failed to properly weigh aggravating and mitigating

factors. The district court determined that this was an

asserted error of state law, and thus no federal habeas relief

was available. See Estelle v. McGuire, 502 U.S. 62, 67–68

(1991).

MURRAY V. SCHRIRO 41

Claim 42 - Unconstitutional Breadth of Prosecution’s

Discretion to Seek the Death Penalty

The district court denied this claim because no clearly

established Supreme Court precedent requires that a state

provide specific standards instructing a sentencing court or

jury how to weigh aggravating and mitigating evidence. See

Ortiz v. Stewart, 149 F.3d 923, 944 (9th Cir. 1998) (citing

Zant v. Stephens, 462 U.S. 862, 880 (1983) for the

proposition that the United States Constitution requires only

that a state provide procedures to guide the sentencer’s

discretion generally). In addition, the district court noted that

we rejected this very argument in Smith v. Stewart, 140 F.3d

1263, 1272 (9th Cir. 1998).

Claim 45 - Ineffective Assistance of Counsel - (sleeping

through significant portions of the trial)

The district court determined, in light of the evidence

presented in the state court proceedings, that the state court

did not rely on an unreasonable determination of facts in

rejecting Roger’s allegation that his counsel slept throughout

a significant portion of the trial and thus was constitutionally

ineffective. Only Roger testified that he actually observed his

lawyer sleeping, and multiple other witnesses testified that

they did not see the lawyer asleep and that he was active and

zealously involved in Roger’s defense. Additionally, the

district court noted testimony from Roger’s lawyer and from

co-counsel that Roger did not complain about his lawyer

falling asleep in court.

The district court also rejected Roger’s argument that he

did not receive a fair hearing because the trial court judge was

a key witness and also the presiding judge for the PCR

42 MURRAY V. SCHRIRO

proceedings. The district court relied on Gerlaugh v. Stewart,

129 F.3d 1027, 1036 (9th Cir. 1997), where we held that a

trial court judge may also preside over post-conviction

proceedings. The district court denied this claim.

Claim 48 - Ineffective Assistance of Counsel - (failure to

present exculpatory witness)

The PCR court concluded that Robert’s counsel was not

ineffective when attempting to locate the alleged exculpatory

witness. The district court determined that even if Roger’s

counsel was ineffective in failing to present that same

witness, the outcome of the trial would have been the same.

The proposed exculpatory testimony that the victim was seen

with three other men on the night of the murder would not

have overcome the insurmountable inculpatory evidence.

Because Roger could not establish prejudice in any event, the

state court’s determination was not contrary to clearly

established federal law, see Strickland v. Washington,

466 U.S. 668, 687–88 (1984).

The district court declined to issue a Certificate of

Appealability (COA) after denying Roger’s petition. Roger

subsequently filed a timely appeal, and we issued a COA for

the following claims:

• Claim 1 - denial of requested change of venue;

• Claim 5 - denial of fair cross-section in the jury

venire;

• Claim 6 - Batson violation;

MURRAY V. SCHRIRO 43

• Claim 7 - denial of request to inspect the crime

scene;

• Claim 16 - omission of voluntary intoxication

instruction;

• Claim 17 - denial of a lesser included offense

instruction;

• Claim 26 - failure to consider mitigating evidence;

• Claim 44 - denial of request to replace counsel due to

irreconcilable conflict;

• Claim 45 - ineffective assistance of counsel (IAC)

due to counsel’s inattentiveness; and

• Claim 48 - IAC due to counsel’s failure to present

exculpatory witness.

II. STANDARDS OF REVIEW

We review de novo a district court’s denial of a habeas

petition. See Fairbank v. Ayers, 650 F.3d 1243, 1250 (9th

Cir. 2011), as amended.

Because Roger filed his petition for a writ of habeas

corpus after April 24, 1996, the Antiterrorism and Effective

Death Penalty Act (AEDPA) applies. See Valerio v.

Crawford, 306 F.3d 742, 763 (9th Cir. 2002) (en banc).

Under AEPDA, we are barred from granting relief unless the

state court decision: “(1) was contrary to clearly established

federal law as determined by the Supreme Court, (2) involved

an unreasonable application of such law, or (3) . . . was based

44 MURRAY V. SCHRIRO

on an unreasonable determination of the facts in light of the

record before the state court.” Fairbank, 650 F.3d at 1251

(citation and internal quotation marks omitted).

A state court’s decision is contrary to clearly established

federal law if its decision contradicts the governing law

articulated by the Supreme Court or reaches a result different

than that reached by the Supreme Court on materially

indistinguishable facts. See Terry Williams v. Taylor,

529 U.S. 362, 405–06 (2000). A state court’s decision is an

unreasonable application of clearly established federal law

when the state court identifies the correct legal rule, but

applies it to a new set of facts in a way that is objectively

unreasonable. See id. at 407.

“Clearly established federal law means the governing

legal principle or principles set forth by the Supreme Court at

the time the state court renders its decision.” Xiong v. Felker,

681 F.3d 1067, 1073 (9th Cir. 2012) (citation omitted).

Although “circuit court precedent may be persuasive in

determining what law is clearly established and whether a

state court applied that law unreasonably[,]” Stanley v.

Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citation omitted),

our determination of clearly-established law under AEDPA

must ultimately rest on a Supreme Court holding, not on dicta

that we have interpreted in circuit decisions. See Carey v.

Musladin, 549 U.S. 70, 74, 77 (2006); see also Wright v. Van

Patten, 552 U.S. 120, 125–26 (2008) (reiterating that a

Supreme Court case must have “squarely address[ed]” a

certain issue and given a “clear answer” regarding the

applicable legal rule to create “clearly established federal law

for AEDPA purposes”).

MURRAY V. SCHRIRO 45

Under AEDPA, we review the “last reasoned decision”

from the state court, which means that when the final state

court decision contains no reasoning, we may look to the last

decision from the state court that provides a reasoned

explanation of the issue. See Shackleford v. Hubbard,

234 F.3d 1072, 1079 n.2 (9th Cir. 2000). In circumstances

where no decision from the state court articulates its

underlying reasoning, “the habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the

state court to deny relief. . . .” Harrington v. Richter, 131 S.

Ct. 770, 784 (2011); see also Johnson v. Williams, 133 S. Ct.

1088, 1096 (2013). In determining whether a petition has met

this burden, we “must determine what arguments or theories

supported or . . . could have supported [ ] the state court’s

decision;” and then assess “whether it is possible fairminded

jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the

Supreme Court]. . . .” Richter, 131 S. Ct. at 786 (citation

omitted). Accordingly, “when the state court does not supply

reasoning for its decision, we are instructed to engage in an

independent review of the record and ascertain whether the

state court’s decision was objectively unreasonable.” Walker

v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (citation and

internal quotation marks omitted).” “Crucially, this is not a

de novo review of the constitutional question. Rather, even

a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. (citations and

internal quotation marks omitted).

Finally, so long as we are reviewing a petitioner’s claim

under AEDPA, our review is limited to the facts before the

state court and the petitioner is not entitled to an evidentiary

hearing in federal court. See Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011).

46 MURRAY V. SCHRIRO

III. DISCUSSION

A. Claim One - Denial of Requested Change of Venue

Roger argues that the denial of his change of venue

motion violated his due process right to a fair trial. He

contends that there was a barrage of pretrial publicity that was

false and prejudicial. He also asserts that there is a

heightened obligation to change venue in capital cases.

The Sixth Amendment guarantees a defendant’s right to

trial before an impartial jury. See Skilling v. United States,

130 S. Ct. 2896, 2912–13 (2010). When an impartial jury

cannot be empaneled due to pretrial publicity, a change of

venue at the request of the defendant is appropriate to prevent

violation of the defendant’s due process right to a fair trial.

See id. at 2913.

To support a change of venue request, the defendant must

establish either presumed or actual prejudice. See id. at 2907.

The Supreme Court has explained that a court may presume

prejudice only when the “trial atmosphere [is] utterly

corrupted by press coverage,” Dobbert v. Florida, 432 U.S.

282, 303 (1977) (citing Murphy v. Florida, 421 U.S. 794, 798

(1975)), or when “a wave of public passion . . . ma[kes] a fair

trial unlikely by the jury . . .” Patton v. Yount, 467 U.S. 1025,

1040 (1984) (internal quotation marks omitted). Juror

exposure to news reports of a crime–even “pervasive, adverse

publicity”–is not enough alone to trigger a presumption of

prejudice to the defendant’s due process rights. Skilling,

130 S. Ct. at 2916 (describing the “vivid, unforgettable” and

“blatantly prejudicial” information at issue in the handful of

cases in which the Supreme Court has presumed prejudice as

a result of pretrial publicity) (citing Rideau v. Louisiana,

MURRAY V. SCHRIRO 47

323 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965);

Sheppard v. Maxwell, 384 U.S. 333 (1966)). Rather, a

presumption of prejudice “attends only the extreme case.” Id.

at 2915.

In the alternative, a defendant may establish the existence

of actual prejudice if, during voir dire, potential jurors who

have been exposed to pretrial publicity express bias or

hostility toward the defendant that cannot be cast aside. Id.

at 2918 & n.20 (citing Mu’Min v. Virginia, 500 U.S. 415, 427

(1991)). The reviewing court must give deference to the trial

court’s assessment of the impartiality of potential jurors,

since that assessment “is ordinarily influenced by a host of

facts impossible to fully capture in the record . . .” Skilling,

130 S. Ct. at 2918; see also Mu’Min, 500 U.S. at 427. (“The

judge of that court sits in the locale where the publicity is said

to have had its effect and brings to his evaluation of any such

claim his own perception of the depth and extent of news

stories that might influence a juror. . . .”).

The last reasoned state court decision addressing the

pretrial publicity issue was the Supreme Court of Arizona

opinion. See Murray, 906 P.2d at 559. The state supreme

court held that Roger failed to demonstrate media attention so

extreme that prejudice could be presumed. See id. Roger

introduced several newspaper articles and presented two

witnesses, a news director and the defense investigator, to

establish presumed prejudice. The newspaper articles were

primarily factual descriptions of the crime and the court

proceedings. Roger highlights two newspaper articles and a

photograph to support his argument. The articles’ captions

were “Two Alabama Brothers Are Arraigned for Brutal

Slayings” and “Murray Brothers Are Suspects in Crime

Spree.” The referenced photograph depicted Robert and

48 MURRAY V. SCHRIRO

Roger standing near a transport van. The text below the

photograph stated that at least eight law enforcement officers

escorted the brothers, and that two armed officers were

stationed on nearby rooftops.

The witnesses testified that people in the area were aware

through news reports of the brothers and of the crimes

committed, and that some members of the community had

expressed the view that the brothers were guilty. After

considering the evidence presented, the state court concluded

that Roger failed to specify “what pretrial publicity was so

outrageous,” as to create an atmosphere that was “utterly

corrupted.” Murray, 906 P.2d at 559 (citation omitted)

(emphasis in the original). Nor was the court convinced that

the security measures implemented for trial “creat[ed] a

contaminated atmosphere,” warranting a presumption of

prejudice. Id. Finally, the court found that no actual

prejudice was shown. Although some of the prospective

jurors were aware of the crime generally, potential juror bias

was probed extensively in the jury questionnaire and during

voir dire. See id. Any prospective juror who failed to

convince the court that he could be objective despite the

pretrial publicity was not allowed to remain on the jury panel.

See id. Once seated, jurors were repeatedly admonished to

avoid media coverage of the trial proceedings. See id. After

reviewing this record, the Arizona Supreme Court affirmed

the trial court’s denial of the requested venue change. See id.

Roger relies on Coleman v. Kemp, 778 F.2d 1487 (11th

Cir. 1985) and Daniels v. Woodford, 428 F.3d 1181 (9th Cir.

2005) to support his argument that the state court’s decision

was unreasonable. As the Supreme Court has made clear,

however, simply because a state court decision is inconsistent

with circuit precedent does not mean that it is an

MURRAY V. SCHRIRO 49

unreasonable application of clearly established federal law

“as determined by the Supreme Court.” Richter, 131 S. Ct. at

784 (quoting 28 U.S.C. § 2254); see also Marshall v.

Rodgers, 133 S. Ct. 1446, 1450–51 (2013). Thus, our circuit

precedent is only relevant to the extent that, “in accordance

with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]

already held that the particular point in issue is clearly

established by Supreme Court precedent . . .” Marshall,

133 S. Ct. at 1450 (citations omitted). “[We] may not

canvass circuit decisions to determine whether a particular

rule of law is so widely accepted among the Federal Circuits

that it would, if presented to th[e] [Supreme] Court be

accepted as correct. . . .” Id. at 1451 (citations omitted).

Therefore, Roger’s argument that his case is similar to the

presumed prejudice determinations in Coleman and Daniels,

see Coleman, 778 F.2d at 1537–38, Daniels, 428 F.3d at

1211, is inapposite to our analysis on habeas review.

Our precedent does, however, require that we “conduct an

independent review of news reports about the case.” Daniels,

428 F.3d at 1210 (citation omitted). An independent review

of the record reveals that Roger presented a number of

newspaper articles to the state court. The bulk of the pretrial

articles were published months prior to trial. And it is

important to note that not all of these articles are from

Mohave County, or are even about Roger. Some of the

articles, particularly the editorials, were about the death

penalty in general. It appears that this is because, around the

time of Roger’s trial, Arizona was preparing to execute a man

for the first time since 1963. This situation created interest,

leading people to question whether the death penalty should

be supported by society in general. In fact, some of the

editorials actually questioned whether the death penalty is

appropriate. One editorial stated that killers should be put six

50 MURRAY V. SCHRIRO

feet under, but the statement was a general one, not directed

toward Roger, neither assuming his guilt, nor calling for his

punishment. Only two editorials actually referenced Roger.

One referred to “the Murray brothers” being represented by

Frank Dickey. The editorial continued by criticizing Mr.

Dickey’s personal views concerning the death penalty. The

other was a letter to the editor praising the judicial system for

denying the defense motion to suppress evidence obtained

after a license plate check by an Arizona DPS officer resulted

in the Murrays’ apprehension. The letter was anything but

inflammatory toward Roger, again not even referring to him

by name, but as one of the Murray brothers.

The vast majority of the articles submitted by Roger

reported only facts, relaying information regarding what

happened at trial on particular days. One article, that ran long

before trial, mentioned that the victims were shot “execution

style” and that an elderly woman had also been attacked by

the brothers in Alabama. The problem with relying on this

article is that it ran in an Alabama newspaper, thousands of

miles from the trial venue. An article describing the brothers

as suspects in a crime spree did run in the Kingman, Arizona,

newspaper over a year before the trial. The article detailed

allegations of a robbery and assault against an elderly woman

in Alabama. Finally, as mentioned by Roger, a newspaper

ran an article about the venue hearing, including a picture of

the brothers being escorted to the jail and a description of

armed officers “perched on rooftops” overlooking them.

Roger also proffered evidence of radio publicity. David

Hawkins, the news and sports director for various local radio

stations, testified that the radio stations’ transmission areas

covered the bulk of the residents in Mohave County.

Mr. Hawkins brought to court copies of the vast majority of

MURRAY V. SCHRIRO 51

the stories that had been broadcast on the radio. He testified

that the community was “upset with what happened to the

victims in this case, and they are curious about the outcome

of this particular–not this particular proceeding, but the whole

of this case.” Mr. Hawkins further testified that he had heard

some expressed opinions that the defendants were guilty,

although he had only spoken to a “couple dozen” members of

the community–mostly people in legal circles, reporters and

social acquaintances.

Of the fifty-seven stories Mr. Hawkins brought to court,

some mentioned that the brothers were connected to a

robbery/assault in Alabama, that they might be linked to

murders in California and New Mexico, and that the murders

were committed “execution style.” Overall, however, the

radio news reports were brief and factual in nature.

Finally, John Freeman, a defense investigator, testified

that he had spoken to a number of people about the case who

thought the brothers were guilty and should “get a quick

trial.”

We conclude that the Arizona Supreme Court’s

determination that prejudice could not be presumed was not

contrary to or an unreasonable application of Supreme Court

precedent, and while it does not impact our AEDPA inquiry,

we note that the ruling was consistent with Coleman and

Daniels as well.

The publicity surrounding Roger’s trial fell far short of

the “utterly corrupted” trial environment that existed in

Rideau, Estes, and Sheppard, the three cases the Supreme

Court described in Skilling as establishing the threshold for

presumed prejudice due to pretrial publicity. Skilling, 130 S.

52 MURRAY V. SCHRIRO

Ct. at 2913–14. In Rideau, the defendant’s confession was

broadcast on television three times, and two-thirds of the

local community saw or heard the broadcast. See 373 U.S. at

724–26. In Estes, there was extensive media presence in the

courtroom, including microphones, television cameras, and

photographers; these facts combined with the live telecast and

rebroadcast of a pre-trial hearing, led the Court to conclude

that such intrusion was inherently prejudicial. See 381 U.S.

at 550–51. Finally, in Sheppard, news articles emphasized

that the defendant’s extramarital affairs were a motive for the

crime, characterized the defendant as a liar, and described

incriminating evidence and discrepancies in defendant’s

statements. See 384 U.S. at 340–41. Likewise, in both

Coleman and Daniels, an onslaught of inflammatory publicity

resulted in a denial of due process. See Coleman, 778 F.2d at

1538–39; see also Daniels, 428 F.3d at 1212. For example,

in Coleman, we emphasized comments on the evidence from

law enforcement officials, derogatory descriptions of the

defendants, remarks from potential defense attorneys seeking

to avoid appointment, and editorials expressing the

appropriateness of the death penalty. See Coleman, 778 F.2d

at 1539–40.

By contrast, news coverage of the crimes committed by

the Murray brothers was almost invariably fact–based. There

was no inflammatory barrage of information that would be

inadmissible at trial. Rather, the news reports focused on

relaying mainly evidence presented at trial. These news

reports do not come anywhere close to the kind of “vivid,

unforgettable” and “blatantly prejudicial” atmosphere that

occurred in Rideau, Estes, and Sheppard. Skilling, 130 S. Ct.

at 2916–17.

MURRAY V. SCHRIRO 53

Roger seeks to avoid this conclusion by arguing that the

legal standard for prejudice is somehow lower in capital

cases, contending that there is a “heightened obligation to be

particularly serious to the need for change of venue for capital

cases.” But Supreme Court precedent provides no support for

this proposition. In Dobbert, to illustrate, the Court expressly

applied Murphy in upholding the petitioner’s death sentence.

See Dobbert, 432 U.S. at 302. The Court has not since

departed from that standard.

Roger also notes that Murphy sets forth a “totality of the

circumstances” test for whether media coverage has “utterly

corrupted” the trial, and that the Arizona Supreme Court

therefore erred in holding that Roger fell short of the standard

because he “failed to show what pretrial publicity was so

outrageous.” That is, Roger believes that he was subjected to

too high a bar, in that he should not have been required to cite

specific instances of outrageous publicity. But the Arizona

Supreme Court cited and considered the evidence that Roger

advanced, and simply found that because none of the

evidence was individually problematic, it would be

impossible to conclude that the totality of circumstances had

“utterly corrupted” the trial as described in Murphy, Murray,

906 P.2d at 559. This conclusion was not contrary to or an

unreasonable application of clearly established federal law, as

summarized most recently in Skilling.

In addition, we conclude that the Arizona Supreme

Court’s determination that no actual prejudice was shown was

not contrary to or an unreasonable application of Supreme

Court precedent. See Mu’ Min, 500 U.S. at 429–30.

Although some of the prospective jurors were aware of the

crime generally, potential juror bias was probed extensively

in the jury questionnaire and during voir dire. See Murray,

54 MURRAY V. SCHRIRO

906 P.2d at 559. Any prospective juror who failed to

convince the court that he could be objective despite the

pretrial publicity was not allowed to remain on the jury panel.

See id. Once seated, jurors were repeatedly admonished to

avoid media coverage of the trial proceedings. See id. After

reviewing this record, the Arizona Supreme Court affirmed

the trial court’s denial of the requested venue change. See id.

Our independent review of the voir dire record reveals

that of the seventy-seven potential jurors, only one indicated

that she had previously formed an opinion regarding the case.

That potential juror stated: “Being people were arrested, I

automatically thought guilty.” That same juror indicated that

it would be difficult for her to overcome her opinion of guilt

based upon the arrest of an individual. That juror was

excused by the trial judge, and only two other potential jurors

mentioned that they had opinions about the circumstances of

the crime. The one potential juror’s opinion concerned the

horrible nature of the crime, not the guilt or innocence of

Roger, while the other potential juror’s opinion was regarding

how a crime like this could happen, not the guilt or innocence

of Roger. Both indicated that they could set aside their

opinions and be fair and impartial. The record indicates that

no other potential juror had extensive knowledge of the case;

indeed, some even stated that they had never heard of the

case. We therefore conclude that the Arizona Supreme

Court’s determination that Roger did not establish either

presumed or actual prejudice was neither contrary to nor an

unreasonable application of Supreme Court precedent.

MURRAY V. SCHRIRO 55

B. Claim Five - Denial of Fair Cross-Section of the

Community in the Jury Venire.

Roger contends that the jury commissioner purposely

excluded jurors who stated that it was contrary to their

Christian beliefs to sit in judgment of others. According to

Roger, this purposeful exclusion violated his rights under the

Sixth Amendment (the Fair Cross-Section Doctrine) and the

Equal Protection Clause of the Fourteenth Amendment.10

On direct appeal, Roger argued that the Sixth and

Fourteenth Amendments had been violated because the jury

list was composed of an out-of-date driver’s license list and

did not include voter registration lists. Moreover, Roger

asserted that even after the jury list was corrected, because

the deadline for returning jury questionnaires was after the

date the jury would be picked, potential jurors from rural

areas were likely to be underrepresented. Finally, Roger

argued that because the state notified jurors to present

themselves for service by telephone, its procedures

systematically excluded individuals who could not afford

telephones. Roger contended that these failures resulted in

the exclusion of young people, poor people, and those hailing

from rural areas, thereby depriving the brothers of a jury of

their peers who were most likely to “understand” them, since

the brothers were young, poor, and from rural Alabama.

The Arizona Supreme Court thoroughly dealt with the

issues raised by Roger on direct appeal, holding that under

Duren and relevant precedent of its own, Roger failed to

10

The district court found that Roger did not raise the Fifth and Eighth

Amendment aspects of this claim in state court, rendering those aspects of

the claim procedurally barred. We agree.

56 MURRAY V. SCHRIRO

show that young, poor, or rural people were a “distinctive”

group for fair cross-section purposes. Murray, 906 P.2d at

556–57. Roger has again raised a fair cross-section claim

before us, but for good reason, makes no argument

challenging the decision actually rendered by the Arizona

Supreme Court. On federal habeas review, Roger now raises

only the exclusion of Christians as the basis for his Sixth

Amendment fair cross-section argument and Fourteenth

Amendment equal protection argument. Although Roger

made fair cross-section and equal protection arguments

before the Arizona Supreme Court, he did not mention the

exclusion of Christians as a basis for these claims. Before us,

the claim asserting exclusion of Christians is brand new.

We are unable to grant federal habeas relief when a

petitioner has failed to exhaust his claim in state court. See

28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement

affords state courts the “opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights. . . .” Picard

v. Connor, 404 U.S. 270, 275 (1971) (citation and internal

quotation marks omitted); see also Baldwin v. Reese,

541 U.S. 27, 29 (2004). To satisfy the exhaustion

requirement, a petitioner “must ‘fairly present’ his claim in

each appropriate state court (including a state supreme court

with powers of discretionary review . . .”), Baldwin, 541 U.S.

at 29 (citations omitted). The purpose of the fair presentation

doctrine “is to prevent unnecessary conflict between courts

equally bound to guard and protect rights secured by the

Constitution.” Picard, 404 U.S. at 275 (citation and internal

quotation marks omitted). However, “[t]he rule would serve

no purpose if it could be satisfied by raising one claim in the

state courts and another in the federal courts.” Id. at 276.

“Only if the state courts have had the first opportunity to hear

the claim sought to be vindicated in a federal habeas

MURRAY V. SCHRIRO 57

proceeding does it make sense to speak of the exhaustion of

state remedies. Accordingly, [the Supreme Court] ha[s]

required a state prisoner to present the state courts with the

same claim he urges upon the federal courts.” Id. (citations

omitted) (emphasis added).

Here, Roger never provided the Arizona Supreme Court

with the opportunity to determine whether the exclusion of

Christians violated his Sixth or Fourteenth Amendment

rights. Like the state court in Picard, the Arizona Supreme

Court had no “opportunity to apply controlling legal

principles to the facts bearing upon (his) constitutional

claim.” Id. at 277 (citation omitted). As in Picard, we cannot

fault the Arizona Supreme Court for “failing also to consider

sua sponte” whether the exclusion of Christians might have

violated Roger’s constitutional rights. Id. Roger’s argument

before the Arizona Supreme Court contained no mention of

Christians being excluded from the jury pool. Thus, we

cannot say that Roger’s current fair cross-section/equal

protection claim predicated on the exclusion of Christians is

the “substantial equivalent” of his claim before the state court

targeting the exclusion of young people, poor people, and

those from rural areas. Id. at 278. This claim, then, is

unexhausted and procedurally defaulted. See Ariz. R. Crim.

P. 32.2(a); see also Poland v. Stewart, 169 F.3d 573, 578 (9th

Cir. 1999).

Even if this claim were not unexhausted and procedurally

defaulted, it is without merit. See 28 U.S.C. § 2254(b)(2)

(providing that “[a]n application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the courts

of the State”); see also Bell v. Cone, 543 U.S. 447, 451 & n.3

(2005) (applying § 2254(b)(2) to reach on the merits a

58 MURRAY V. SCHRIRO

petitioner’s unexhausted but meritless claim). The only

evidence in the record regarding the exclusion of Christians

is the following colloquy:

[Prosecutor]: And do you [jury commissioner]

excuse anybody because they state any

particular religious denomination?

[Jury Commissioner]: Only one group, and I

wish–I don’t remember. Seventh Day

Adventists or Jehova’s [sic] Witnesses have

stated on their questionnaire and sent copies,

I mean a page out of their Bible that it is

against their religious beliefs to sit in

judgment of anyone. And only if they request

it.

To establish the lack of a fair cross-section of the

community, a defendant must demonstrate that: (1) the group

alleged to be excluded is a distinctive one in the community;

(2) representation of this group in the jury venires is not fair

and reasonable in relation to the number of such persons in

the community; and (3) this underrepresentation is due to

systematic exclusion of the group in the jury-selection

process. See Berghuis v. Smith, 130 S. Ct. 1382, 1392 (2010)

(citing Duren, 439 U.S. at 364).

An equal protection violation arises if a jury selection

process resulted in a substantial underrepresentation of an

identifiable group. See Castaneda v. Partida, 430 U.S. 482,

494 (1977). First, there must be identification of a group that

is recognizable, distinctive, and singled out for different

treatment under the laws as written or applied. See id.

Second, there must be a showing that the distinctive class was

MURRAY V. SCHRIRO 59

proportionately underrepresented over a significant period of

time. See id. Finally, there must be evidence that the juror

selection process was susceptible to abuse or was not neutral.

See id. Only after this prima facie showing is made must the

state defend its jury selection process. See id.

Roger does not identify any Supreme Court precedent that

would require the state to interrogate the individuals who

revealed that it was against their religious beliefs to serve on

a jury, and would require the jurors to re-confirm their ability

to set aside their beliefs and apply the governing law. To the

extent Roger advances a claim of error in rejecting this

argument, the claim is meritless.

As for the Sixth Amendment claim, Roger has failed to

show any systematic exclusion of a distinct group. In fact,

Roger has not shown that any Christians were excluded.

Moreover, the jury commissioner testified that members of

specific religious denominations are excluded only if they

request exclusion based on their particular religious beliefs.

This practice does not constitute systematic exclusion.

Likewise, Roger’s equal protection claim fails because the

jury commissioner did not disclose that any specific religious

denomination, or Christians, are singled out for disparate

treatment. The evidence only supports the conclusion that

individuals are excluded if exclusion is specifically requested

due to religious beliefs. By no stretch of the imagination does

this meager evidence satisfy the required showings of

systematic exclusion and disparate treatment. Thus, even if

Roger’s claim were not procedurally defaulted, we would

conclude that the Arizona Supreme Court’s decision denying

Roger’s fair cross-section/equal protection claim was not

contrary to or an unreasonable application of Supreme Court

precedent.

60 MURRAY V. SCHRIRO

C. Claim Six - Batson Violation

Roger contends that the state violated Batson when it

dismissed the only two Hispanic potential jurors from the jury

venire.

For the reasons set forth in Robert Murray v. Schriro, No.

08-99008, Slip. Op. pp. 27–42 (9th Cir. March 17, 2014), we

affirm the district court’s denial of Roger’s Batson claim.

D. Claim Seven - Denial of Request to Inspect the

Crime Scene

Citing United States v. Valenzuela-Bernal, 458 U.S. 858

(1982), Roger argues that the trial court denied him due

process by denying his new investigator access to the crime

scene for inspection. Additionally, Roger asserts that the

Supreme Court of Arizona’s ruling “is not entitled to any

deference,” because it did not address his federal

constitutional claims and relied only on state law. Roger’s

arguments are unpersuasive.

The last reasoned decision addressing the inspection due

process claim is the decision of the Supreme Court of Arizona

denying relief. The state court found that Roger failed to

support the purported necessity of viewing the crime scene

for a second time. See Murray, 906 P.2d at 569.

The United States Supreme Court has instructed that

evidence sought by a defendant must be material. See United

States v. Bagley, 473 U.S. 667, 682 (1985). Merely showing

that access to evidence was denied does not establish a

constitutional violation. See Valenzuela-Bernal, 458 U.S. at

867. The defendant must make a plausible argument that the

MURRAY V. SCHRIRO 61

evidence sought is “both material and favorable to his

defense,” id., and not “merely cumulative” to other evidence.

Id. at 873 (footnote reference omitted). Evidence is material

in the constitutional sense if there is a “reasonable likelihood”

that it “could have affected the judgment of the trier of fact”

if it had been made available to the defense. Id. at 874.

Roger’s lead counsel and his investigator inspected the

crime scene shortly after the crime was committed and

approximately a year prior to his trial. See Murray, 906 P.2d

at 569. Co-counsel from the same public defender’s office

and an additional investigator were subsequently assigned to

Roger’s defense team. See id. However, neither the new

attorney nor the new investigator visited the crime scene prior

to trial. See id. During trial, defense counsel requested an

opportunity to revisit the crime scene. See id. The trial court

denied the request. See id. The Arizona Supreme Court

affirmed the trial court’s finding that Roger failed to establish

the need for a second inspection. See id.

The state court decision was not contrary to Valenzuela-

Bernal. In Valenzuela-Bernal the Court explained that a

defendant only has a right to evidence that is “relevant and

material” to his defense. Valenzuela-Bernal, 458 U.S. at 867.

Roger failed to show how inspection of the crime scene a

year later, and after the scene had been cleaned, see Murray,

906 P.2d at 569, would uncover evidence that was “relevant

and material” to his defense. Valenzuela-Bernal, 458 U.S. at

867. The Arizona Supreme Court’s decision was not contrary

to or an unreasonable application of Supreme Court

precedent. See id. at 874 (holding that there was no

constitutional violation in similar circumstances).

62 MURRAY V. SCHRIRO

Roger also contends that because the Arizona Supreme

Court did not address his federal due process claim, no

AEDPA deference is warranted on this issue. However, as

stated, even if the state court does not analyze a claim, we

nevertheless review the state court decision with deference to

the state court’s denial of relief. See Johnson, 133 S. Ct. at

1094; see also Cunningham v. Wong, 704 F.3d 1143, 1153

(9th Cir. 2013). In the same vein, if a state court does not

explicitly state the reason for denying a claim, we presume

that the state court adjudicated the claim on its merits. See

Richter, 131 S. Ct. at 784–85. Although this presumption

“may be overcome when there is reason to think some other

explanation for the state court’s decision is more likely,” id.

at 785, Roger does not suggest any such reason. When a state

court determines a federal claim without discussing federal

precedent, AEPDA deference to the state court’s decision

remains, and it is still “the habeas petitioner’s burden” to

show “there was no reasonable basis for the state court to

deny relief. . . .” Id. at 784.

Although the Arizona Supreme Court did not explicitly

address Roger’s federal constitutional claim, it provided

adequate reasoning based on state law to affirm the trial

court’s ruling denying Roger’s motion to revisit the crime

scene. See Murray, 906 P.2d at 569. Notably, in his brief to

the Arizona Supreme Court, Roger cited Valenzuela-Bernal,

a case he characterized as incorporating “constitutionally

guaranteed access to evidence.” See Johnson, 133 S. Ct. at

1099 (referring to the defendant’s brief to determine that the

federal claim was addressed). Moreover, in denying Roger’s

claim, the Arizona Supreme Court cited Arizona Rule of

Criminal Procedure 15.1(e), which governs the circumstances

under which a trial court may grant additional disclosure

requests by the defendant. See Murray, 906 P.2d at 569. As

MURRAY V. SCHRIRO 63

in Johnson, it is “difficult to imagine” the Arizona Supreme

Court “announcing an interpretation of” Rule 15.1(e) “that it

believed to be less protective than” the Fourteenth

Amendment, “as any such interpretation would provide no

guidance to state trial judges bound to follow both state and

federal law.” Johnson, 133 S. Ct. at 1098. And, as we have

already explained, it is apparent that “neither the reasoning

nor the result of the state-court decision contradicts” the

Supreme Court’s rule in Valenzuela-Bernal. Early v. Packer,

537 U.S. 3, 8 (2002). Thus, the Arizona Supreme Court

addressed Roger’s Sixth Amendment claim when it denied

relief on Roger’s challenge to the denial of the requested

inspection, and its determination was not contrary to or an

unreasonable application of clearly established federal law.

See Johnson, 133 S. Ct. at 1099.

E. Claim Sixteen - Omission of Voluntary

Intoxication Instruction

Citing Dunckhurst v. Deeds, 859 F.2d 110 (9th Cir. 1988),

Roger contends that failure of the trial court to give a

voluntary intoxication instruction, violated his due process

right to a fair trial. Both defendants requested an intoxication

instruction, which the trial court denied, reasoning that the

defendants “ha[d not] made out any credible evidence on

intoxication.”

Roger’s reliance on Dunckhurst is misplaced. Dunckhurst

is a pre-AEDPA case relying on our precedent developed

during direct appeal of criminal convictions. See 859 F.2d at

114 (citing United States v. Lesina, 833 F.2d 156 (9th Cir.

1987)). Once again, our circuit precedent is only relevant to

the extent that “in accordance with [our] usual law-of-the-

circuit procedures, . . . [we] ha[ve] already held that the

64 MURRAY V. SCHRIRO

particular point in issue is clearly established by Supreme

Court precedent . . .” Marshall, 133 S. Ct. at 1450 (citations

omitted). Dunckhurst does not purport to determine that a

particular rule is clearly established federal law under

Supreme Court precedent. Consequently, Dunckhurst is

inapposite to our analysis on federal habeas review.

The Arizona Supreme Court provided the last reasoned

decision for this claim, affirming the trial court’s conclusion

that Roger had failed to establish that the alcohol he allegedly

consumed affected his “ability to think, function, or form

intent.” Murray, 906 P.2d at 566. The Arizona Supreme

Court explained, that under A.R.S. § 13-50311 (1992), a

voluntary intoxication instruction “should be given only when

the record supports such an instruction . . . .” Id. at 566–67

(citation omitted). A mere showing of alcohol consumption

alone is inadequate to require giving an intoxication

instruction. See id. at 567. The defendant must also establish

that the effect of the alcohol negated an element of the crime.

See id. The court determined that Roger had failed to meet

this burden. See id.

11

A.R.S. § 13-503 (1992) provided:

No act committed by a person while in a state of

voluntary intoxication is less criminal by reason of his

having been in such condition, but when the actual

existence of the culpable mental state of intentionally or

with the intent to is a necessary element to constitute

any particular species or degree of offense, the jury

may take into consideration the fact that the accused

was intoxicated at the time in determining the culpable

mental state with which he committed the act.

MURRAY V. SCHRIRO 65

Due process does not require the jury to be instructed

regarding the defendant’s intoxication at the time of the

crime. See Montana v. Egelhoff, 518 U.S. 37, 51, 56 (1996).

But, where a state has decided that a party is entitled to an

intoxication instruction, a failure to so instruct the jury is

reviewed to determine if the error has “so infected the entire

trial that the resulting conviction violates due process. . . .”

Estelle, 502 U.S. at 72 (citations omitted). As the Arizona

Supreme Court noted in its decision on direct appeal, “[a]

party is entitled to an instruction on any theory reasonably

supported by evidence. An intoxication instruction should be

given only when the record supports such an instruction.”

State v. LaGrand, 733 P.2d 1066, 1070 (Ariz. 1987) (citations

omitted); see also Murray, 906 P.2d at 566–67. Roger faces

a particularly heavy burden in seeking to establish a due

process violation because a jury instruction was omitted

rather than erroneously given. “An omission, or an

incomplete instruction, is less likely to be prejudicial than a

misstatement of the law. . . .” Henderson v. Kibbe, 431 U.S.

145, 155 (1977).

As the Arizona Supreme Court noted, Roger did present

evidence that he had been drinking on the night of the crime.

See 906 P.2d at 566. Roger’s counsel stated that “[t]he jury,

from the evidence before it, could perhaps determine that the

defendants over the period of time they had been drinking,

did become intoxicated. . . .” The prosecutor responded that

“the State doesn’t believe there’s any evidence of

intoxication. The only direct testimony on that was a person

at the bar . . . that said they did not appear to be intoxicated or

under the influence. . . .” Based on this evidence, the trial

court–and the Arizona Supreme Court–found that:

66 MURRAY V. SCHRIRO

[Murray had not] made out any credible

evidence on intoxication. The fact that the

defendants were drinking isn’t–there’s no

testimony as to what effect that had on their

ability to think or their abilities to function or

to form the intent involved, and I will not give

an instruction on intoxication.

Roger has only argued that the trial court did not consider

certain facts in making its determination that he had failed to

show that he was intoxicated. Raw speculation aside, Roger

presents no evidence that tends to call into question the trial

court’s factual determination that Roger had not proven that

his drinking on the night of the crime–the only evidence that

could be established–had a substantial effect on him such that

he lacked the requisite intent. Based on our review of the

record, we agree that the evidence did not support Roger’s

voluntary intoxication defense. Therefore, the Arizona

Supreme Court’s denial of Roger’s claim that the trial court’s

omission of the intoxication instruction constituted a due

process violation was not contrary to or an unreasonable

application of federal law as established by the Supreme

Court. See Estelle, 502 U.S. at 72; see also Mathews v.

United States, 485 U.S. 58, 63 (1988) (explaining that a

defendant is only entitled to an instruction on a defense

theory supported by the evidence).

F. Claim Seventeen - Denial of a Lesser Included

Offense Instruction

Roger argues that the trial court denied him due process

when it denied the defendants’ request to instruct the jury on

second degree murder as a lesser included offense. Relatedly,

Roger also asserts that the trial court’s decision contravened

MURRAY V. SCHRIRO 67

Enmund v. Florida, 458 U.S. 782 (1982), by imposing the

death penalty when Roger did not intend to take a life or

intend that lethal force be used.

The last reasoned decision addressing this issue is the

Arizona Supreme Court’s denial of relief, explaining that a

lesser included offense instruction is warranted only if

supported by the evidence. See Murray, 906 P.2d at 567.

The court reasoned that an instruction on second degree

murder would only apply to premeditated murder, but not to

felony murder, which was the crime of conviction. See id. In

addition, the crime of second degree murder is characterized

by evidence of lack of premeditation and deliberation. See id.

The Arizona Supreme Court adopted the trial court’s

determination—considering that the victims were forced to

lie on the carpet and were shot in the back of the head with

different weapons, the only rational inference was that the

murders were deliberate and premeditated, thereby precluding

a verdict of second degree murder.12 See id.

12

A.R.S. § 1104 (1992) provided in pertinent part:

A. A person commits second degree murder if without

premeditation:

1. Such person intentionally causes the death of another

person; or

2. Knowing that his conduct will cause death or serious

physical injury, such person causes the death of another

person; or

3. Under circumstances manifesting extreme

indifference to human life, such person recklessly

engages in conduct which creates a grave risk of death

and thereby causes the death of another person.

68 MURRAY V. SCHRIRO

“[D]ue process requires that a lesser included offense

instruction be given only when the evidence warrants such an

instruction. . . .” Hopper v. Evans, 456 U.S. 605, 611 (1982)

(citing Beck v. Alabama, 447 U.S. 625 (1980)).

The element the Court in Beck found

essential to a fair trial was not simply a lesser

included offense instruction in the abstract,

but the enhanced rationality and reliability the

existence of the instruction introduced into the

jury’s deliberations. Where no lesser included

offense exists, a lesser included offense

instruction detracts from, rather than

enhances, the rationality of the process. Beck

does not require that result. Spaziano v.

Florida, 468 U.S. 447, 455 (1984).

In Arizona, “[t]o determine whether there is sufficient

evidence to require the giving of a lesser included offense

instruction, the test is whether the jury could rationally fail to

find the distinguished element of the greater offense. . . .”

State v. Krone, 897 P.2d 621, 625 (Ariz. 1995) (in banc)

(quoting State v. Detrick, 873 P.2d 1302, 1305 (Ariz. 1994)

(internal quotation marks omitted)). The Arizona rule

comports with the federal rule and therefore does not offend

constitutional standards. See Hopper, 456 U.S. at 612 (“The

federal rule is that a lesser included offense instruction should

be given if the evidence would permit a jury rationally to find

a defendant guilty of the lesser offense and acquit him of the

greater.”) (citation, alteration, and internal quotation marks

omitted). Thus, the Arizona Supreme Court’s reliance on this

MURRAY V. SCHRIRO 69

rule was not contrary to or an unreasonable application of

clearly established federal law.13

Moreover, at trial, the judge directly asked what evidence

supported an instruction that the offense could have been

something other than first-degree murder. Roger’s counsel

could not point to any actual evidence suggesting anything

other than premeditation. Rather, counsel responded that “we

cannot look into the jury’s mind and determine whether or not

they are going to find premeditation or not. . . .” In turn, the

prosecutor stated:

Here what we have are repeated gunshots

on a helpless couple laying on the floor.

Somebody is guilty of premeditated murder.

The defendants can argue it’s not them

certainly, but the way the victims died can

only be premeditated. There’s no way that

you can look at that set of facts and say that is

not premeditated, looking at the analysis

under Lamb.

Based on the record, the trial court ruled:

Well, if based on the physical evidence, I

don’t see how it can be anything other than

first degree murder. It may not be the

13

Roger also argues that “[i]f the jury had been given the intoxication

instruction and they had found [his] intoxication negated the specific

intent necessary for a conviction of first degree premeditated murder, then

the jury could have found [him] guilty of second degree murder. . . .” As

we stated above, the record did not support an intoxication instruction, so

this argument is unavailing; the evidence also did not warrant a second-

degree murder instruction based on intoxication.

70 MURRAY V. SCHRIRO

defendants, that’s for the jury to decide. The

whole defense is based on other things other

than the actual death of the victims. It’s either

first degree murder or it’s nothing. And in

essence, I agree with the State. So, I will not

give second degree murder as a lesser.

The Arizona Supreme Court agreed: “Defendants had the

victims lie on the carpet of their living room and proceeded

to shoot each of them with different weapons in the back of

the head. The only inference that a jury rationally could have

drawn was that defendants premeditated.” Murray, 906 P.2d

at 567 (citation omitted).

Roger argues that the Arizona Supreme Court’s decision

is contrary to Enmund and Tison. In Enmund, the defendant

participated in a robbery that ultimately resulted in murder,

although the defendant did not murder anyone or intend for

anyone to be killed. See 458 U.S. at 798. The United States

Supreme Court noted that “the Florida Supreme Court held

that the record supported no more than the inference that

Enmund was the person in the car by the side of the road at

the time of the killings, waiting to help the robbers

escape. . . .” Id. at 788. There was no evidence in Enmund

that the defendant actively participated in the murders or was

present when the victims were murdered. See id. Based

solely on those facts, the Supreme Court held that the

imposition of a death sentence upon a defendant who did not

kill or intend to kill the victims violated the Eighth

Amendment. See id. at 801. But on the other hand, as the

Supreme Court clarified several years later, “major

participation in the felony committed, combined with reckless

indifference to human life, is sufficient to satisfy the Enmund

culpability requirement” for when the death penalty may be

MURRAY V. SCHRIRO 71

imposed. Tison v. Arizona, 481 U.S. 137, 151-52, 158 (1987)

(so holding where two brothers brought “an arsenal of lethal

weapons” into an Arizona prison with the intent to arm

convicted murderers and help them escape, “participated fully

in the kidnapping and robbery and watched the killing”).

Unlike the facts in Enmund, and similar to those in Tison,

the Arizona Supreme Court found that the physical evidence

substantiated Roger’s involvement as an active participant.

See Murray, 906 P.2d at 567. When apprehended, Roger had

blood on his clothes which was not his, but which could have

come from either victim. See id. at 555. Roger also

discarded a loaded .25 caliber gun immediately prior to his

arrest, which was consistent with the fired .25 caliber shell

found at the crime scene. Roger’s footprints were left at the

crime scene, see id. at 554, and the brothers possessed items

stolen from Grasshopper Junction, including rolled coins

stamped with the name and location of the store, and a

cushion cover from the couch that contained blood and tissue

from Applehans. See id. at 554-55. This and additional

evidence tending to show that Roger intended to take life, or

intended that lethal force be used, support much more than a

mere inference that Roger was just a person in a car waiting

to help the actual robbers escape. Therefore, the Arizona

Supreme Court’s ruling that this record did not warrant a

lesser included offense instruction was not contrary to or an

unreasonable application of Supreme Court precedent.

G. Claim Twenty-Six - Failure to Appropriately

Consider Mitigating Evidence

Roger argues that the trial court erroneously determined

that his dysfunctional childhood could not be considered as

an independent mitigation factor. Specifically, Roger asserts

72 MURRAY V. SCHRIRO

that the state court misapplied Eddings v. Oklahoma,

455 U.S. 104, 115 (1982), and its progeny by requiring a

nexus between the mitigation evidence and the commission

of the crimes. Stated differently, Roger contends that the

Arizona court required Roger to demonstrate that the

childhood experiences offered in mitigation contributed to his

commission of the crimes.

The state counters that Roger did not raise this issue

before the state court, and as a result, it is procedurally

barred. However, Roger raised this issue in his direct appeal

when he argued that the trial court failed to objectively

consider his mitigation evidence. The Arizona Supreme

Court rejected Roger’s claim, finding that the sentencing

court reviewed all of the mitigating evidence, but deemed it

insufficient to outweigh the aggravating factors. See Murray,

906 P.2d at 578–79. Roger now renews his argument that the

Arizona Supreme Court unconstitutionally applied the causal

nexus test. Roger relies on the portion of the Arizona

Supreme Court’s decision addressing the trial court’s finding

that Roger’s childhood was dysfunctional, and concluding

that “he fail[ed] to show how this background impacted his

behavior at Grasshopper Junction.” Murray, 906 P.2d at 577.

Citing Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008),

Roger contends that the Arizona Supreme Court’s analysis of

the trial court’s weighing is contrary to United States

Supreme Court authority from Smith v. Texas, 543 U.S. 37

(2004), and related cases.

Under clearly established Supreme Court authority, a state

court may not treat mitigating evidence of a defendant’s

character or background “as irrelevant or nonmitigating as a

matter of law” simply because it does not have a causal

MURRAY V. SCHRIRO 73

connection to the crime. Towery v. Ryan, 673 F.3d 933, 946

(9th Cir. 2012) (per curiam); see also Penry v. Lynaugh,

492 U.S. 302, 318 (1989) (citing Eddings, 455 U.S. at 114

and holding that a state cannot, “consistent with the Eighth

and Fourteenth Amendments, prevent the sentencer from

considering and giving effect to evidence relevant to the

defendant’s background or character or to the circumstances

of the offense that mitigate against imposing the death

penalty”), abrogated on other grounds by Atkins v. Virginia,

536 U.S. 304 (2002). On the other hand, the sentencer may

consider “causal nexus . . . as a factor in determining the

weight or significance of mitigating evidence. . . .” Lopez v.

Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011) (citing Eddings,

455 U.S. at 114–15) (footnote reference omitted).

In determining whether the state court used a causal nexus

analysis as an impermissible screening mechanism or as a

permissible weighing tool, we must presume the latter

“[a]bsent a clear indication in the record” that the state court

“violated Eddings’s constitutional mandates.” Schad v. Ryan,

671 F.3d 708, 724 (9th Cir. 2011), as amended (citing Bell,

543 U.S. at 455); see also Poyson v. Ryan, No. 10-99005,

__F.3d__, 2013 WL 5943403, at *11 (9th Cir. Nov. 7, 2013),

as amended (denying relief on a causal nexus claim when

ambiguity existed regarding “whether the [state] court

considered the absence of a causal nexus as a permissible

weighing mechanism . . ., or as an unconstitutional screening

mechanism”). This presumption applies not only when we

are drawing inferences from a state court’s silence, but also

when we are interpreting a state court’s ambiguous statement.

See Woodford v. Viscotti, 537 U.S. 19, 22–24 (2002). The

cases Murray relies on, Smith and Styers, are consistent with

these principles. The Supreme Court in Smith rejected the

causal nexus requirement between a petitioner’s mitigation

74 MURRAY V. SCHRIRO

factors and the crime. See Smith, 543 U.S. at 45 (focusing on

whether the factfinder “consider[ed] and g[a]ve effect to a

defendant’s mitigation evidence in imposing sentence”)

(citations, alterations and internal quotation marks omitted).

In Styers, we similarly held that the state court’s application

of the causal nexus test to mitigating evidence was “contrary

to the constitutional requirement that all relevant mitigating

evidence be considered by the sentencing body. . . .” Styers,

547 F.3d at 1035 (citing Smith, 543 U.S. at 45).

After closely reviewing the record, the Arizona Supreme

Court found that the trial court considered all of the

mitigating evidence and explained in painstaking detail in

special verdicts why the mitigating evidence did not outweigh

the aggravating factors. See Murray, 906 P.2d at 571–79

(discussing the mitigation evidence). Roger’s claim that the

trial court failed to properly weigh his mitigating evidence is

not supported by the record. See id. The Arizona Supreme

Court, in reviewing the trial court’s weighing of mitigating

and aggravating factors, discussed in detail Roger’s claim that

he was a troubled youth, citing information regarding his

confinement in a juvenile detention center. See id. at 574.

The court acknowledged that a counselor at the detention

center identified Roger’s need of help to manage his anger

and emotional issues. See id. The court noted that a

sociologist testified during his sentencing hearing that

Roger’s problems as a youth stemmed from neglect at home

and by government officials. See id. However, the court also

discussed that the sociologist testified that Roger knew killing

was wrong. See id. Additionally, the court noted that Roger

suffered from head injuries and was diagnosed with attention

deficit/hyperactivity disorder. See id. at 574–75. Further, the

court discussed Roger’s use of alcohol and illicit drugs. See

id. at 575–76. Nevertheless, the court concluded that

MURRAY V. SCHRIRO 75

although his dysfunctional childhood, head injuries,

hyperactivity, and alcohol/drug use were mitigating factors,

these factors had negligible mitigating force because Roger

did not show how they affected his behavior on the night of

the murders. See id. at 577.

Taken in the full context of the Arizona Supreme Court’s

exhaustive analysis, there is no “clear indication in the

record,” Schad, 671 F.3d at 724, that its statement that Roger

“fail[ed] to show how this [family] background impacted his

behavior at Grasshopper Junction,” Murray, 906 P.2d at 577,

amounted to an impermissible screening mechanism under

Eddings.” See Lopez, 630 F.3d at 1204 (emphasizing that

“we must look to what the record actually says” and that

where “the state court made clear that it considered all the

mitigating evidence and found it wanting,” we cannot “infer

unconstitutional reasoning”).

Even if we assume the Arizona Supreme Court did

commit causal nexus error with respect to Roger’s troubled

childhood, the error was harmless and we would still deny his

claim for relief. See Stokley v. Ryan, 705 F.3d 401, 404 (9th

Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623

(1993)) (explaining that a non-structural error requires

reversal only if it “had substantial and injurious effect or

influence in determining the . . . verdict”). Under Stokley,

where the appellate court reviews all of the mitigating and

aggravating factors individually, and confirms the trial

court’s determination that there are no grounds substantial

enough to warrant leniency, the appellate court’s Eddings

error with respect to a relatively minor mitigating factor does

not create a “reasonable likelihood that, but for a failure to

fully consider [that factor], the [state] courts would have

come to a different conclusion. . . .” 705 F.3d at 405 (citation

76 MURRAY V. SCHRIRO

omitted). Thus, in Stokley we concluded that the Arizona

Supreme Court’s Eddings error, if any, with respect to family

history or good behavior while imprisoned, was harmless.

See id. Here, as in Stokley, after “review[ing] and

discuss[ing] each of the aggravating and mitigating factors

individually,” id. at 404, the Arizona Supreme Court agreed

with the trial court that Roger’s mitigation evidence was

minimal “at best” and that there was certainly “no mitigating

evidence sufficiently substantial to call for leniency. . . .”

Murray, 906 P.2d at 579. Therefore, any Eddings error with

respect to the effect of Roger’s troubled childhood does not

raise a reasonable likelihood that fuller consideration of that

relatively minor factor would have led the Arizona courts to

reach a different conclusion. In other words, Roger “cannot

demonstrate actual prejudice because he has not shown that

the error, if any, had a substantial and injurious impact on the

verdict. . . .” Stokley, 705 F.3d at 404.

In sum, the Arizona Supreme Court’s decision was not

contrary to or an unreasonable application of Supreme Court

precedent, because the record reflects that the sentencing

court, as the factfinder, employed the causal nexus test as a

permissible means of weighing the entirety of Murray’s

mitigation evidence prior to imposing his sentence. See Bell,

543 U.S. at 455. Even if there were a causal nexus error

under Eddings, Roger cannot establish prejudice and we must

deny his claim for relief in any event. See Stokley, 705 F.3d

at 404 (citing Brecht, 507 U.S. at 623).

H. Claim Forty-Four - Denial of Request to Replace

Counsel Due to Irreconcilable Conflict

Roger asserts that his Sixth Amendment right to counsel

was violated because of an irreconcilable conflict with his

MURRAY V. SCHRIRO 77

counsel. Roger argues that his claim is not procedurally

barred, because he raised the issue to the Arizona Supreme

Court and in his PCR petition. The state counters that this

issue is procedurally barred as determined in the PCR court’s

decision dated January 10, 2000. We need not resolve this

procedural point, because to the extent Roger argues that his

claim may be resurrected under Martinez, habeas relief is not

warranted. Roger might be entitled to a remand under

Martinez if he could establish that his PCR counsel was

ineffective for failing to raise the irreconcilable conflict

asserted by Roger, and that the underlying IAC claim is

“substantial.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th

Cir. 2012), as amended. We examine the record to determine

whether Roger has made the required showing of

ineffectiveness of PCR counsel. See id. To do so, Roger

must establish that his trial counsel’s performance was

deficient and that he was prejudiced as a result. See id.; see

also Strickland, 466 U.S. at 687 (articulating standard for

ineffective assistance of counsel claim). To demonstrate that

the performance by PCR counsel was deficient, Roger must

show that counsel’s failure to raise the underlying IAC claim

did not “fall[ ] within the wide range of reasonable

professional assistance” and “overcome the presumption that,

under the circumstances, the challenged action might be

considered sound trial strategy. . . .” Strickland, 466 U.S. at

689 (citation and internal quotation marks omitted).

Prejudice is shown by evidence of 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. Here, Roger would have to

establish that the outcome of his PCR proceedings would

have been different.

78 MURRAY V. SCHRIRO

If there is a failure of proof on either prong, habeas relief

is not warranted. See Gentry v. Sinclair, 705 F.3d 884, 899

(9th Cir. 2013), as amended. A defendant’s disagreement

with trial counsel’s strategy does not constitute deficient

performance on the part of trial counsel. See Strickland,

466 U.S. at 689–91; see also Raley v. Ylst, 470 F.3d 792, 799

(9th Cir. 2006). Additionally, to demonstrate an

irreconcilable conflict, Roger must establish that there was a

complete breakdown of communication that substantially

interfered with the attorney-client relationship. See United

States v. Mendez–Sanchez, 563 F.3d 935, 943 (9th Cir. 2009).

At the hearing held in response to Roger’s request to

terminate his attorneys, Roger confirmed his wish to end his

relationship with his attorneys due to a conflict of interest.

Roger’s trial counsel explained to the court that there was an

irreconcilable difference of opinion regarding the strategy for

the penalty phase proceedings. The trial court ultimately

granted Roger’s motion to represent himself and allowed an

attorney from the public defender’s office to remain as

advisory counsel. One week later, Roger filed a motion

requesting appointed counsel. Counsel from the public

defender’s office informed the trial court that an ethical

conflict remained due to the office’s representation of Roger

and another client with an adverse interest who was to testify

in response to a prospective witness for Robert’s case.

Counsel also reminded the court about the conflict between

counsel and Roger regarding strategy for the penalty phase.

Counsel suggested to the court that another attorney represent

Roger. The court reviewed the suggestion and reappointed

counsel from the public defender’s office, with Roger

agreeing. The conflict presented to the trial court by Roger

concerned strategy for the penalty phase. This issue

implicates attorney strategy rather than irreconcilable

MURRAY V. SCHRIRO 79

conflict. Thus, Roger failed to establish that his claim of

irreconcilable conflict was of sufficient merit to substantiate

a claim of ineffective assistance of counsel.14 See Sexton,

679 F.3d at 1156–57 (explaining that a defendant cannot

establish that counsel’s performance fell below an objective

standard of reasonableness when the only disagreement

concerned strategy); cf. Daniels v. Woodford, 428 F.3d 1181,

1199–1200 (9th Cir. 2005) (recognizing an irreconcilable

conflict where there was a complete lack of communication

between attorney and client).

Roger failed to establish that the conflict between his

counsel and him was indeed irreconcilable. See Mendez-

Sanchez, 563 F.3d at 943 (noting that defendant’s relationship

with counsel did not rise to the level of irreconcilable conflict

when the conflict was generated from defendant’s general

unreasonableness). Therefore, the PCR counsel’s

performance was not deficient. Because Roger did not

establish that his conflict with counsel was irreconcilable, his

ineffective assistance of counsel claim lacks sufficient merit

to warrant a Martinez remand.15 See Sexton, 679 F.3d at

14

The Arizona Supreme Court interpreted this issue as a request for

hybrid representation and ruled that the trial court did not abuse its

discretion when it denied Roger’s request. See Murray, 906 P.2d at

560–61. Although its conclusion was couched in the context of hybrid

representation, the Arizona Supreme Court addressed Roger’s assertion of

irreconcilable differences and affirmed the trial court’s reappointment of

counsel from the public defender’s office. See id.

15

In the alternative, Roger contends that the district court erred in not

addressing his motion to amend his petition to include this claim. Roger

relies on the Second Circuit’s decision in Littlejohn v. Artuz, 271 F.3d 360

(2d Cir. 2001). However, Littlejohn is not binding precedent in this

circuit. More importantly, any failure to address Roger’s request for leave

to amend was harmless in view of the lack of merit to his claim. See

80 MURRAY V. SCHRIRO

1156–57 (noting that an IAC claim must be substantial to

warrant a Martinez remand and that disagreement regarding

strategy does not constitute ineffectiveness of counsel); but

see Detrich v. Ryan, 740 F.3d 1237, 1248 (9th Cir. 2013) (W.

Fletcher, J., plurality) (explaining that in most cases,

Martinez motions should be remanded to the district court for

a decision in the first instance).

I. Claim Forty-Five - Ineffective Assistance of Trial

Counsel Due to Counsel’s Inattentiveness

Roger contends that he was denied the effective assistance

of counsel, because his counsel slept during substantial

portions of his trial. Roger further asserts that his evidentiary

hearing regarding this issue violated due process, because the

judge presiding at his trial was also the presiding judge at his

PCR hearing.

The Sixth Amendment guarantees the accused the “right

to the effective assistance of counsel.” United States v.

Cronic, 466 U.S. 648, 655–56 (1984). The Supreme Court

“has concluded that the assistance of counsel is among those

‘constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error.’” Holloway

v. Arkansas, 435 U.S. 475, 489 (1978) (citing Chapman v.

California, 386 U.S. 18, 23 (1967)). Moreover, “when a

defendant is deprived of the presence and assistance of his

attorney, either throughout the prosecution or during a critical

stage in, at least, the prosecution of a capital offense, reversal

is automatic.” Id. (citations omitted). We have held that

when counsel sleeps through a substantial portion of a trial,

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (noting that denial of

leave to amend is appropriate if amendment would be futile).

MURRAY V. SCHRIRO 81

his client has been deprived of effective legal assistance,

resulting in inherent prejudice. See Javor v. United States,

724 F.2d 831, 833–34 (9th Cir. 1984). Roger relies solely on

our decision in Javor to support his claim. Nevertheless,

Roger’s reliance on Javor is misplaced. Javor is a pre-

AEDPA case that was crafting a rule from existing Supreme

Court precedent. See id. We reiterate that our circuit

precedent is only relevant to the extent that, “in accordance

with [our] usual law-of-the circuit procedures, . . . [we] ha[ve]

already held that the particular point in issue is clearly

established by Supreme Court precedent . . . .” Marshall,

133 S. Ct. at 1450 (citations omitted). As such, Javor is

inapposite to our analysis on federal habeas review.

The last reasoned state court decision addressing this

claim was the PCR court’s order dated March 21, 2002.

After a two-day hearing including witness testimony, the

PCR court concluded that Roger’s counsel did not actually

sleep during the trial. Robert’s trial counsel testified that

Roger’s trial counsel had a reputation for “dozing off” in

court. She stated that she personally observed Roger’s

counsel “in a posture that look[ed] like he’s asleep.”

However, she admitted that she was not sure at times whether

he was dozing or just listening with his eyes closed. Robert’s

counsel did not contemporaneously inform the trial court of

her observations.

A former juror testified that she vaguely remembered

Roger’s lawyer nodding off during the trial. During cross-

examination, she conceded that Roger’s counsel did not close

his eyes for long periods of time, and that she would have

informed a bailiff if Roger’s counsel had been asleep for

significant portions of the trial.

82 MURRAY V. SCHRIRO

Roger’s appellate counsel testified that Roger specifically

told her that his trial counsel appeared to doze during trial.

She also mentioned that she did not raise the issue of Roger’s

trial counsel sleeping, because it was not part of the record on

direct appeal.

Roger’s trial counsel testified that he remembered Roger

complaining about him sleeping during jail visits, but not

during trial. He did not remember sleeping during the trial.

The PCR court directly questioned Roger’s trial counsel,

asking explicitly whether he slept during the trial. In reply,

Roger’s counsel stated: “Your Honor, quite frankly, I can’t

say. I wouldn’t be the one to really know that. I don’t think

I did, but there is a possibility I did. But it would have been

basically just a few seconds more than anything else. A cat

nap type thing.” He did not admit to sleeping. The PCR

court then recalled on the record that Roger’s trial counsel

appeared generally to be “fired up” during the cases he had

tried before the judge. Trial counsel agreed that he indeed

was typically “fired up” for his case and that he had “tried to

give [Roger’s trial] more because of the importance of it.”

Roger testified that he observed his trial counsel asleep

first at the jail and then almost daily during trial. During the

testimony of Detective Lent, the footprint expert, Roger

observed his trial counsel asleep for four to five minutes.

Roger also observed his trial counsel sleeping during the

medical examiner’s testimony. Roger remembered his trial

counsel sleeping through other witnesses as well. Roger

recalled that he informed his other trial counsel and his

appellate counsel about his observations. Roger did not

inform the trial court about his observations.

MURRAY V. SCHRIRO 83

During cross-examination, the state reviewed the trial

transcript with Roger, specifically emphasizing witness

testimony where Roger had testified that his counsel was

asleep. The state consistently established that Roger’s trial

counsel was engaged during the witness testimony that Roger

previously associated with his counsel’s sleeping. Roger

admitted during cross-examination that he did not specify in

his affidavit precisely when his trial counsel was sleeping.

The prosecutor testified that Roger’s trial counsel

appeared engaged and active during trial. The prosecutor

observed Roger’s trial counsel listening with his eyes closed.

According to the prosecutor, Roger’s trial counsel had a habit

of closing his eyes when he was thinking, and he would nod

occasionally, but when a response was required he would

seamlessly open his eyes and respond appropriately,

appearing to be completely engaged.

Neither the bailiff nor the investigator remembered

Roger’s trial counsel sleeping during the trial. The same was

true for co-counsel. Co-counsel did not observe Roger

kicking his trial counsel or trial counsel falling asleep during

trial. Neither did co-counsel recall Roger speaking to him

about trial counsel falling asleep during trial.

After oral argument and after reviewing briefs from both

counsel, the PCR court entered a minute order denying relief.

The PCR court acknowledged that Robert’s trial counsel and

a former juror testified to observing Roger’s trial counsel

sleeping during portions of the trial. However, the PCR court

noted that other witnesses and the trial transcript undermined

this testimony. The PCR court found that the trial transcript

reflected that Roger’s trial counsel was “actively engaged in

the trial.” The PCR court credited the testimony of trial

84 MURRAY V. SCHRIRO

counsel that he did not recall sleeping during the trial. In

addition, the PCR court found the testimony of the

prosecutor, the investigator, and the bailiff more credible.

Each of these three witnesses denied ever seeing Roger’s trial

counsel asleep during the trial. The PCR court was also

persuaded by co-counsel’s testimony that Roger never

complained to co-counsel about trial counsel sleeping.

We cannot conclude that the PCR court’s rejection of

Roger’s claim was based on an unreasonable determination

of the facts. See 28 U.S.C. § 2254(d)(2). Indeed, the record

of the trial proceedings confirms the reasonableness of the

PCR court’s finding that Roger’s counsel was not asleep

during the trial. Most telling was the state’s demonstration

from the transcripts that counsel was actively questioning

witnesses and objecting to testimony at times when Roger

accused counsel of being asleep. See Hibbler v. Benedetti,

693 F.3d 1140, 1148–50 (9th Cir. 2012) (concluding, after

reviewing the evidence presented in state court, that the state

court’s determination was not unreasonable). Because

Roger’s Strickland claim hinges on the fact that his counsel

slept through substantial portions of trial, which the record

does not support, we conclude that the state court did not

unreasonably apply clearly established Supreme Court

precedent. We affirm the district court’s denial of relief on

this claim.

The Arizona Supreme Court’s rejection of Roger’s claim

that he was denied a full and fair hearing also was not

contrary to, or an unreasonable application of clearly

established Supreme Court precedent. We have stated that

“[i]t has long been regarded as normal and proper for a judge

to sit in the same case upon its remand, and to sit in

successive trials involving the same defendant. . . .”

MURRAY V. SCHRIRO 85

Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997)

(quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).

There must be more than “the false assumption that trial

judges are not capable of doing what the law requires” to

justify the requirement that a different judge hear subsequent

proceedings. Id. The Supreme Court has also recognized that

“knowledge (and the resulting attitudes) that a judge properly

acquired in an earlier proceeding [is] not . . .

‘extrajudicial’. . . . [T]rial rulings have a judicial expression

rather than a judicial source. They may well be based upon

extrajudicial knowledge or motives. . . .” Liteky, 510 U.S. at

545 (citations omitted) (emphases in the original).

The judge who presides at a trial may, upon

completion of the evidence, be exceedingly ill

disposed towards the defendant, who has been

shown to be a thoroughly reprehensible

person. But the judge is not thereby recusable

for bias or prejudice, since his knowledge and

the opinion it produced were properly and

necessarily acquired in the course of the

proceedings, and are indeed sometimes (as in

a bench trial) necessary to completion of the

judge’s task. As Judge Jerome Frank pithily

put it: “Impartiality is not gullibility.

Disinterestedness does not mean child-like

innocence. If the judge did not form

judgments of the actors in those court-house

dramas called trials, he could never render

decisions.” Also not subject to deprecatory

characterization as “bias” or “prejudice” are

opinions held by judges as a result of what

they learned in earlier proceedings. It has

long been regarded as normal and proper for

86 MURRAY V. SCHRIRO

a judge to sit in the same case upon its

remand, and to sit in successive trials

involving the same defendant.

Id. at 550–51 (citations omitted).

Roger has not identified any Supreme Court case holding

that a defendant is deprived of due process when the trial

judge presides over post-conviction proceedings. Rather, the

opposite is true. See id.; see also Cook v. Ryan, 688 F.3d

598, 612 (9th Cir. 2012) (noting that the trial judge was

“ideally situated” to make an assessment of the facts when

resolving post-conviction issues) (quoting Schriro v.

Landrigan, 550 U.S. 465, 476 (2007)). The distinction is

plain. As a fact witness, the judge would be seeking to

persuade the finder of fact to a certain view of the evidence.

As the presiding jurist, the judge is the factfinder, with

absolutely no incentive to shade the facts one way or the

other. See, e.g., Fed. R. Evid. 605 (providing that the

presiding judge may not testify as a witness in the trial over

which he presides); see also United States v. Berber-Tinoco,

510 F.3d 1083, 1091 (9th Cir. 2007) (holding that a trial court

judge is not a competent witness to factual matters in a case

over which he presides). No similar conundrum exists when

the trial judge presides over post-conviction proceedings. In

the post-conviction proceedings, the judge functions as a

reviewer of the trial proceedings rather than as a chronicler of

the facts. As the Supreme Court has explained, the trial

judge’s unique knowledge of the trial court proceedings

renders him “ideally situated” to review the trial court

proceedings. Landrigan, 550 U.S. at 476. Roger’s due

process rights were honored in full. Serving as an adjudicator

rather than as a witness, the PCR court determined that

Roger’s claim lacked merit.

MURRAY V. SCHRIRO 87

In this case, the only evidence that Roger puts forward is

that the judge stated: “I guess I have to tell you I remember

some things about this trial very well . . . and I–I never saw

[Roger’s trial counsel] asleep.” Roger relies upon this

statement to demonstrate that the trial judge “was a key and

biased witness who did not testify but ruled on the motions

while his own observations were not subject to cross-

examination.” It is important to consider the trial judge’s full

comments:

Well, I guess–I guess I have to tell you I

remember some things about this trial very

well. And one was that [Roger’s trial

counsel] was very aggressive, very emphatic

and–but of course you know–and I–I never

saw him asleep. But, you know, I guess I’ll

let you have an opportunity to show me that

he was sleeping during substantial portions of

the trial because we have the Affidavits that

say he was. But I have to tell you, I’m

skeptical about that because I remember how

aggressive he was–aggressively he argued

when we were off the record, and even when

we were on the record, the objections in the

case.

So, I guess I’ll set that–that one I think

probably should be set for an evidentiary

hearing, because you know, it’s–it’s certainly

not something that was on the record and

certainly not something that I noticed. So

number four we’ll set for evidentiary hearing.

88 MURRAY V. SCHRIRO

Read in the context of the judge’s full statement, Roger’s

claim is unfounded. The judge stated that his recollection

was that Roger’s trial counsel was very aggressive and

involved and that he had no memory of Roger’s trial counsel

sleeping. Rather than merely denying the claim based upon

his own recollection, however, the judge elected to hold an

evidentiary hearing because “we have the Affidavits that he

was [sleeping].” This situation is no different from a

situation where a judge retains unexpressed recollections of

trial matters and presides over an ensuing evidentiary hearing.

In that vein, the judge’s articulated skepticism does not

provide a basis for Roger’s claim of judicial bias because the

judge’s “knowledge and the opinion it produced were

properly and necessarily acquired in the course of the

proceedings. . .” Liteky, 510 U.S. at 551. Therefore, the

Arizona Supreme Court’s rejection of Roger’s Sixth

Amendment claim of judicial bias was not contrary to or an

unreasonable application of clearly established Supreme

Court precedent.

Finally, Roger asserts that he is entitled to an evidentiary

hearing to develop this claim. However, because we review

Roger’s claim under § 2254(d) rather than de novo, Supreme

Court precedent bars him from receiving an evidentiary

hearing. See Pinholster, 131 S.Ct. at 1398 (directing that

habeas claims under AEDPA be resolved on the record before

the state court).

J. Claim Forty-Eight - Ineffective Assistance of Trial

Counsel Based on Counsel’s Failure to Present an

Exculpatory Witness

Roger contends that his counsel was ineffective because

he “never bothered to interview [a] critical witness. . . .”

MURRAY V. SCHRIRO 89

According to Roger, the witness, John Anthony (Anthony)

was located by Robert’s attorney’s investigator approximately

one week before trial. Roger complains that despite the

discovery of this critical witness, his trial counsel failed to

interview the witness, depose him, call him to testify, or

request a continuance. Roger asserts that his trial counsel had

“no strategic reason for not calling [the witness] directly.”

Failure to call this witness, Roger argues, resulted in the

absence of evidence tending to implicate others and

suggesting that he was not present at the scene of the crime.

Roger maintains that any reasonable attorney would have

called this witness.

The state PCR court’s denial of this claim did not provide

a reasoned explanation. See Richter, 131 S. Ct. at 784

(recognizing that AEDPA “does not require that there be an

opinion from the state court explaining the state court’s

reasoning. . . .”) (citations omitted). We can, however, look

through to the evidentiary hearing and oral argument during

which the PCR judge articulated the reasons for his later

summary reiteration of his previous decision denying

Robert’s identical claim. In this situation, “‘whe[re] the state

court does not supply reasoning for its decision,’ we are

instructed to engage in an ‘independent review of the record’

and ascertain whether the state court’s decision was

‘objectively unreasonable.’” Walker, 709 F.3d at 939

(quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.

2000)). “Crucially, this is not a de novo review of the

constitutional question. Rather, ‘even a strong case for relief

does not mean the state court’s contrary conclusion was

unreasonable.’” Id. (citations omitted).

Through an evidentiary hearing on Robert’s identical

claim, the PCR court learned that Anthony, the allegedly

90 MURRAY V. SCHRIRO

exculpatory witness, purportedly witnessed a blue car parked

outside the Grasshopper Junction store on the same night as

the murders. Anthony informed the prosecution’s

investigator that he thought he saw the victim Morrison with

three men, none of whom resembled Robert.16 Anthony’s

testimony would have supported the defense’s theory of the

case, that Roger and Robert happened to be at Grasshopper

Junction, but did not commit the murders. Robert’s trial

counsel informed the court that neither she nor her

investigator were able to contact Anthony, which is why he

was never called as a witness. Although her investigator

discovered that Anthony was in a Veterans Administration

treatment center in California, the investigator was never able

to make contact with Anthony.

The PCR court found that Robert’s trial counsel had

investigated the exculpatory witness to the best of her ability.

The PCR judge stated: “We don’t have any proof that the

witness would have said what’s in the report. We still

haven’t found the witness.” The PCR judge recalled that, as

trial judge, he would not have granted a continuance for

further investigation, and had to believe that both Robert’s

trial counsel and Roger’s trial counsel were still trying to find

Anthony through the end of the case. The PCR court found

that Robert’s counsel was not deficient in her performance,

and that even if she were deficient, the outcome of the trial

would not have changed.

At the oral argument of Roger’s identical claim, the PCR

judge indicated that he had already heard and considered

evidence from Robert regarding this exact claim, resulting in

denial of Robert’s claim. The judge explained that he denied

16

This is the same exculpatory witness to whom Roger refers.

MURRAY V. SCHRIRO 91

Robert’s identical claim because the evidence had established

that the witness was unavailable–he could not be located.

And, even if he had been located just prior to trial, counsel

could not have “gotten him [to court] as a witness.” This

evidence before the state court “was sufficient to resolve the

factual question” whether Roger’s counsel performed

deficiently, and thus the PCR court’s failure to hold an

evidentiary hearing on the issue did not “render its fact-

finding process unreasonable,” Hibbler, 693 F.3d at 1147.

Because Roger did not demonstrate that his trial counsel had

performed deficiently, the PCR court’s rejection of Roger’s

claim was not contrary to established Supreme Court

precedent. See Strickland, 466 U.S. at 687.

Before us, Roger argues that the trial judge erred by not

holding a separate evidentiary hearing before resolving his

identical claim. However, Roger failed to adduce any

evidence raising a question regarding the actual availability

of the witness, or regarding a lack of diligence by his counsel

in attempting to locate the witness. Roger merely stated:

[My] position is that any reasonably effective

criminal defense lawyer would have seen that

he was a crucial witness at trial, would have

located him, would have found him, would

have subpoenaed him, would have had him in

court and would have had him testify. [Trial

counsel] didn’t do any of those things, period.

Absolutely no evidence was presented to the PCR court

to substantiate Roger’s assertions. Only speculation was

offered. Specifically, Roger asked for funds so he could:

92 MURRAY V. SCHRIRO

find Mr. Anthony nine years after the fact so

[he could] present Mr. Anthony to [the PCR

court] so that [the PCR court could] live and

in color hear Mr. Anthony, hear his testimony,

evaluate his credibility, and then make a

determination whether if called by an

effective counsel Mr. Anthony could have

made a difference.

After considering Roger’s speculative proffer, the PCR

judge had no reason to hold another evidentiary hearing,

especially in view of the PCR judge’s recognition that

“there’s absolutely no proof at all that [Anthony] was

available for the trial.”

Critical to the PCR judge’s decision was the fact that

“even if [Roger’s counsel] was incompetent, it would not

have made a difference as far as the verdict was concerned.

So it would not have made a difference. . . .” Thus, it fairly

appears that the judge found the evidence of guilt so

overwhelming that any testimony Anthony could have given

would not have resulted in a different verdict. In other words,

Roger could not establish Strickland prejudice. Ultimately,

after evaluating the evidence presented during Robert’s

evidentiary hearing and Roger’s failure to proffer any further

relevant evidence, the PCR court summarily denied Roger’s

claim of ineffective assistance of counsel.

The district court denied Roger’s request for an

evidentiary hearing, and agreed with the factual findings

made by the state court. The district court correctly denied a

federal evidentiary hearing because federal habeas review is

limited to the record before the state court. See Pinholster,

131 S. Ct. at 1398–1400. Viewing that record, the district

MURRAY V. SCHRIRO 93

court explained that to grant habeas relief, the reviewer would

have to find that the jury would have believed the defense’s

theory that Robert and Roger burglarized the victims’ store

and home after finding the victims already dead. In support

of this theory, Roger relied on Anthony’s statement regarding

the three men he observed at the store who did not resemble

Robert and Roger and who drove a different car; a statement

from Angela Anthony that she heard a man threaten one of

the victims the day prior to the murders; and proffered

testimony from an unidentified witness that Robert and Roger

were elsewhere when the three men were spotted at the store.

Roger relies most heavily on the statement of John Anthony

as the basis for his IAC claim.

The state court determined that Roger’s counsel was not

ineffective in this respect, and the state court’s determination

was not contrary to, or an unreasonable application of,

Strickland or other Supreme Court precedent. To establish

ineffective assistance of counsel the petitioner must hurdle an

extremely high bar. See Richter, 131 S. Ct. at 788.

Strickland provides the legal standard for assessing a claim of

ineffective assistance of counsel on habeas review. See

466 U.S. at 685–87.

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant

must show that the deficient performance

prejudiced the defense. This requires showing

that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial

94 MURRAY V. SCHRIRO

whose result is reliable. Unless a defendant

makes both showings, it cannot be said that

the conviction or death sentence resulted from

a breakdown in the adversary process that

renders the result unreliable.

Id. at 687.

To meet the first prong “the defendant must show that

counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. This inquiry is “highly

deferential.” Id. at 689; see also Richter, 131 S. Ct. at 788.

When Strickland’s standards are coupled with the provisions

of AEDPA, review is “doubly deferential.” Richter, 131 S.

Ct. at 788. “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary. . . .” Strickland,

466 U.S. at 691. Reasonableness is viewed as of the time of

the conduct and against the background of the facts of the

case. See Rompilla v. Beard, 545 U.S. 374, 381 (2005). The

duty to investigate does not require “defense lawyers to scour

the globe on the off chance something will turn up;

reasonably diligent counsel may draw a line when they have

good reason to think further investigation would be a

waste. . . .” Id. at 383 (citations omitted).

The second prong requires the defendant to “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.”

Strickland, 466 U.S. at 694. The question for a reviewing

court applying Strickland together with the § 2254(d) overlay

is whether there is a “reasonable argument that counsel

MURRAY V. SCHRIRO 95

satisfied Strickland’s deferential standard,” such that the state

court’s rejection of the IAC claim was not an unreasonable

application of Strickland. Richter, 131 S. Ct. at 788. Relief

is warranted only if no reasonable jurist could disagree that

the state court erred. See Pinholster, 131 S. Ct. at 1402.

Even on de novo review, Roger’s IAC claim falters on

both prongs of the Strickland standard. Counsel was not

deficient, and Roger suffered no Strickland prejudice. As

discussed, the PCR court held an evidentiary hearing before

resolving Robert’s IAC claim predicated on his counsel’s

failure to produce John Anthony as a witness. The record

reflects that the exculpatory witness was not available and

that Robert’s counsel made a reasonable effort to locate and

present the witness. Counsel’s performance was not deficient

in view of her reasonable investigatory efforts. See Rompilla,

545 U.S. at 382–83. We also agree with the district court that

the overwhelming evidence of guilt forecloses any credible

argument that the outcome of the trial would have been

affected by the proffered exculpatory evidence. To acquit

Robert and Roger, the jury would have had to believe that the

brothers found the victims already dead and got the victims

blood on their clothes while burglarizing the store and the

residence. This scenario, by the way, was totally inconsistent

with the facts that the male victim’s wallet containing $800

was left undisturbed in his pants pocket, and that $172 was

found on a chair. The implausibility of the proffered

exculpatory version of events and the strength of the

inculpatory evidence both bolster the state court’s finding

under the doubly d

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