Robert Murray v. Dora Schriro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT WAYNE MURRAY, No. 08-99008

Petitioner-Appellant,

D.C. No.

v. 2:99-CV-01812-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 Bybee

2 MURRAY V. SCHRIRO

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a

conviction and capital sentence for murder.

The panel first held that the state court’s denial of

petitioner’s claim—that the prosecutor violated Batson v.

Kentucky, 476 U.S. 79 (1986), by using peremptory

challenges to strike two Hispanic potential jurors—was not

based on an unreasonable determination of the facts.

The panel next held that the state court’s denial of

petitioner’s claim of ineffective assistance of counsel

regarding the investigation and presentation of mitigation

evidence of petitioner’s troubled childhood and impairments

was not based on an unreasonable determination of the facts

or an unreasonable application of clearly established federal

law.

Finally, the panel declined to grant a motion to expand the

certificate of appealability because the district court properly

found that allowing petitioner to bring numerous proposed

claims in an amended habeas petition would be futile.

*

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

COUNSEL

Jennifer Y. Garcia (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; and Jaleh

Najafi, Assistant Federal Public Defender, Phoenix, Arizona,

for Petitioner-Appellant.

Jeffrey A. Zick (argued), Assistant Attorney General; Terry

Goddard, Attorney General; and Kent Cattani, Chief Counsel,

Arizona Attorney General’s Office, Phoenix, Arizona, for

Respondents-Appellees.

OPINION

BYBEE, Circuit Judge:

Robert Wayne Murray (“Murray”) was convicted in

Arizona of two counts of first-degree murder and sentenced

to death. The Arizona Supreme Court affirmed his

conviction, and the United States Supreme Court denied

Murray’s petition for certiorari. Arizona courts denied

Murray’s request for post-conviction relief. In this habeas

suit brought under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110

Stat. 1214, we address three issues: (1) whether the Arizona

state court’s denial of Murray’s Batson motion was “contrary

to, or involved an unreasonable application of, clearly

established Federal law” or was “based on an unreasonable

determination of the facts,” 28 U.S.C. § 2254(d); (2) whether

the state court’s denial of Murray’s ineffective assistance of

counsel claim was “contrary to, or involved an unreasonable

application of, clearly established Federal law” or was “based

on an unreasonable determination of the facts,” id.; and

4 MURRAY V. SCHRIRO

(3) whether Murray “made a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), when the

district court denied his “Motion for Leave to File a Second

Amended Motion for Writ of Habeas Corpus,” and if so,

whether the district court abused its discretion in denying the

motion. The district court for the District of Arizona denied

Murray’s petition for writ of habeas corpus.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Facts

1. Background

Murray’s responsibility for the murders is not questioned.

On May 14, 1991, LaVern Raduenz stopped at Grasshopper

Junction, located near Kingman, Arizona, for coffee.

Raduenz was an acquaintance of Dean Morrison and

Jacqueline Appelhans, who lived at Grasshopper Junction and

ran the store/restaurant situated there. Approaching the

restaurant, Raduenz noticed that there was money lying on

the ground outside, the restaurant door was open, and the cash

register was displaced from its usual position. Raduenz then

walked over to Morrison’s house and discovered that the door

to the house was also open, revealing Morrison’s and

Appelhans’s bodies, clad in bathrobes, lying face down in the

living room. Morrison had been shot twice with a .38 caliber

pistol, in the neck and temple, and his skull had been

shattered by a shotgun blast at close range. Appelhans had

been shot at least twice in the back of the neck with a .22

MURRAY V. SCHRIRO 5

caliber weapon and two .38 caliber slugs were removed from

her skull.

Morrison’s house had been ransacked. Drawers were

open, items littered about, and a cushion cover was missing

from the couch. In the store, the cash-register drawer had

been removed and a roll of coins and loose change were

strewn about the kitchen floor and throughout the courtyard.

Although all of the facts pointed to robbery as the underlying

motivation, $172 was found lying on a desk chair and

Morrison’s wallet, containing $800, was undisturbed in his

pants’ pocket. In the store, packs of Marlboro cigarettes were

left in paper bags and the gasoline register was on. Outside

on the store’s patio were Morrison’s glasses, a flashlight, and

a set of keys. Law enforcement officers also discovered guns,

bullets, and shell casings at the crime scene.

A Mohave County Sheriff’s Department detective

analyzed the tracks—footprints—at the crime scene. Besides

those created by Raduenz and law enforcement officers, the

detective identified four sets of tracks. Two sets of tracks

were attributed to the victims, while the other two were

determined to have been made by a pair of tennis shoes and

a pair of western-style boots. Photographs of the tracks were

taken, and some sketches made. Moreover, the detective

determined that the tracks indicated that Morrison had

resisted his attacker. Near some of the tracks attributed to

Morrison and his assailant, law enforcement officers also

found tire tracks attributed to a Grasshopper Junction tow

truck, owned by Morrison, that was nowhere to be found at

the crime scene.

Elsewhere, on the same morning, an Arizona Department

of Public Safety officer happened upon a white 1988 Ford

6 MURRAY V. SCHRIRO

Tempo sedan bearing Alabama license plates. The officer’s

suspicions were aroused by the vehicle’s behavior, leading

the officer to run an inquiry on the vehicle’s license plate

number. The officer learned that the vehicle and its two

occupants, Murray and his brother Roger Wayne Murray,

were wanted in Alabama, suspected of having been involved

in an assault and robbery and potentially armed and

dangerous. As the officer attempted to pull over the vehicle,

a high-speed chase ensued. The vehicle eventually left the

highway, running a manned and armed roadblock, and only

stopping when it left the road and came to an impassable

wash.

The driver, Murray, threw from the vehicle a .38 caliber

revolver containing four live bullets. A subsequent search of

Murray’s person yielded two spent shotgun shells and keys

that were later determined to fit a 1991 Chevrolet pickup

located on Morrison’s property. His passenger, Roger Wayne

Murray, threw a loaded .25 caliber semi-automatic pistol

from the vehicle. The shell casings found at the crime scene

and the casings recovered from Murray’s pocket were

determined to have been fired by the guns found in the

Murray brothers’ possession. The men were wearing tennis

shoes and boots consistent with the tracks identified at

Grasshopper Junction.

A subsequent vehicle inventory uncovered: a loaded

twelve-gauge shotgun and live shells; a checkered couch

cushion, matching the pattern of the couch in Morrison’s

house, and containing rolled coins stamped “Dean

Enterprises, Grasshopper Junction, Kingman, Arizona,

86401”; a blue pillowcase containing approximately $1400 in

rolled coins and $3300 in cash; gloves; a receipt from the

Holiday House Motel in Kingman, Arizona, dated May 12,

MURRAY V. SCHRIRO 7

1991 (the Murray brothers had listed a 1988 Ford on the hotel

registration card and had checked out on May 13, 1991); and

a road atlas with the locations of two rural shops circled,

including Grasshopper Junction. A scanner and connecting

knob, fitting the empty bracket of the Grasshopper Junction

tow truck that had left the tire tracks found at the crime

scene—which was later discovered abandoned on westbound

I-40—were also found in the vehicle.

Human blood and tissue was found on the Murray

brothers’ clothing, as well as on the cushion cover recovered

from their vehicle. Blood tests indicated that the blood on

Roger Wayne Murray’s pants could have come from the

victims or Murray; the blood on Murray’s shirt could have

come from the victims, but not from Roger Wayne Murray;

and the blood on the cushion could have come from

Appelhans, but not Morrison or either of the Murray brothers.

2. Jury Selection and Trial

The Murrays were arrested and indicted in Mohave

County, Arizona, for the first-degree murders of Morrison

and Appelhans, and the armed robbery of Morrison. During

jury selection, after the trial court excused potential jurors for

cause, only two Hispanic venire members remained: potential

jurors Pethers and Alvardo. The prosecutor then used

peremptory challenges to dismiss the two remaining Hispanic

potential jurors. Murray’s trial counsel objected to the

prosecutor’s use of the peremptory challenges and requested

that the trial court conduct an inquiry under Batson v.

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

8 MURRAY V. SCHRIRO

In light of the objection, the trial judge asked the

prosecutor to respond. Regarding potential juror Pethers, the

following colloquy ensued:

PROSECUTOR: Your Honor, first, as to Ms.

Pethers, I don’t believe that she is a Hispanic.

I don’t recall seeing that on her jury

questionnaire, and I don’t recall if she

appeared to talk Hispanic to me. So, I am not

sure that that’s a showing—

THE COURT: I don’t have the questionnaire

in front of me.

DEFENSE: The questionnaire did indicate

that she’s Hispanic, Your Honor. I believe

her maiden name was Garcia, but her first

name is Christina.

THE COURT: I remember she said her

mother’s name was Garcia.

PROSECUTOR: Right. I am not sure that’s

Hispanic, Garcia, as opposed to Spanish, the

amount I know about her mother from the

prosecutor. I could be wrong, I don’t know.

THE COURT: Well, of course, I can look at

the questionnaires. I will have to take a recess

to do that. But, let’s assume for the time

being that she is Hispanic and the defense is

correct.

MURRAY V. SCHRIRO 9

PROSECUTOR: Your Honor, the State

recently did a major drug investigation of her

mother and her mother’s brother . . . . It’s a

very big case. Both of those defendants went

to jail for a time. I’m not sure of the status of

Mrs. Garcia. From what Mrs. Pethers said,

the charge was dismissed. I believe there’s

been some sort of negotiated deal, but I am

not positive about that. But, I know both

those people were heavy into drugs. Both of

the people around them were suspected of

being in drugs. There’s a forfeiture action

proceeding against Garcia, Mallon. This

being the daughter, I do not believe that

she—I don’t want her on the jury for those

reasons, possible bias.

Regarding potential juror Alvardo, the prosecutor stated:

PROSECUTOR: Mr. Alvardo is Hispanic, and

it was a close call on that strike. What I went

on is, as Mr. Alvardo told the Court, he knows

me, I know him. Not well. I’m going

basically on my personal knowledge of Mr.

Alvardo five or six years ago. I was dating a

lady who was a nurse, going to various social

functions, parties, whatnot. I met Mr.

Alvardo probably a half a dozen times

anyway, and I had discussions with him. The

social functions at these parties, my

recollection of Mr. Alvardo is he’s a very,

very nice person. He is too nice. You

couldn’t get him to disagree with you. He

didn’t want to hurt anybody. He is just

10 MURRAY V. SCHRIRO

indecisive, is my recollection of him. My

strike on him is solely going back to my

personal knowledge of meeting him numerous

times four or six years ago.

The trial court denied Murray’s Batson objections. The

trial judge stated that based on his “own opinions about those

particular jurors[,] . . . the reasons given by the State are

sufficient . . . [and] consistent with my own assessments of

those particular jurors.” Subsequently, a jury was empaneled

and the joint trial of the Murray brothers began.

At the conclusion of their joint jury trial, Murray and his

brother were both found guilty of the first-degree murders of

Morrison and Appelhans, and the armed robbery of Morrison.

3. Sentencing

Prior to Murray’s sentencing hearing, the Mohave County

Probation Department conducted a pre-sentence investigation.

As part of that investigation, Murray was interviewed to

prepare a social history. In that interview, Murray spoke of

a childhood marred by an abusive father and his own general

failure in all activities during his youth. Murray discussed his

educational (both traditional and vocational) and employment

background. Murray detailed his medical problems,

including “dizzy spells and headaches,” and the substance

abuse that he began to engage in during his teenage years.

Accompanying the pre-sentence investigation report was a

record of Murray’s prior criminal offenses.

In addition to the information contained in the pre-

sentence investigation report, Murray’s trial counsel, O’Neill,

prepared a Pre-Sentence Memorandum (“Memorandum”) for

MURRAY V. SCHRIRO 11

the trial judge to consider at Murray’s aggravation/mitigation

hearing. The Memorandum included attachments containing

Murray’s prison records; interviews providing information

regarding his employment history, including the interview of

a former co-worker; and correspondence and interviews with

a number of Murray’s friends, family members, and

acquaintances, detailing his personal and family background

and difficult childhood. The dates on the letters and

interviews indicate that O’Neill began investigating Murray’s

background prior to the conclusion of the trial’s guilt phase.

The Memorandum also chronicled details from Murray’s

dysfunctional childhood, such as his suffering repeated

physical abuse at the hands of his father; witnessing his

father’s involvement in myriad illegal activities; and records

showing that he was often absent from school.

At Murray’s sentencing hearing, the trial judge stated that

the Memorandum and attached documents would be taken

into consideration. The evidence actually presented at the

sentencing hearing, though, went even further. At that time,

O’Neill entered into evidence: a psychiatric evaluation of

Murray, conducted by Dr. Jack Potts; and letters from and

interviews with family members, friends, classmates, and co-

workers on Murray’s behalf. Furthermore, Brenda Murray

and Ruby Bradford, Murray’s mother and aunt respectively,

testified in person. Although from the record it appears that

Angela Hall, Murray’s younger sister, was also present and

ready to testify, she did not testify at Murray’s sentencing

hearing.

Dr. Potts’ psychiatric evaluation, which was also entered

into evidence at the sentencing hearing, relied upon

information contained in: the pre-sentence investigation

report and corresponding attachments; letters written between

12 MURRAY V. SCHRIRO

the Murray brothers while incarcerated; Murray’s criminal

record from Alabama; interviews with Murray’s family

members, friends, classmates, and co-workers; police reports;

and Murray’s school records. Dr. Potts was aware of

Murray’s medical issues, such as fecal and urinary

incontinence, as well as his history of intense headaches and

seizures. Moreover, Dr. Potts’ evaluation discussed the

varied physical and psychological impacts of Murray’s

dysfunctional childhood. Considering all of these factors, Dr.

Potts concluded that Murray’s circumstances warranted a

mitigated sentence.

Based upon the evidence presented at both the trial and

sentencing hearing, the trial judge found that the state had

proven three aggravating factors beyond a reasonable doubt.

Moreover, the trial judge found that Murray had proven two

mitigating factors by a preponderance of the evidence: that

Murray was capable of rehabilitation and that Murray

suffered from a dysfunctional childhood. The trial judge

ruled that the mitigating factors were “not sufficiently

substantial to outweigh the aggravating circumstances proved

by the State and to call for leniency.” Murray was sentenced

to death.

B. Procedural History

Murray appealed his conviction and death sentence

directly to the Arizona Supreme Court. After conducting an

independent review, the Arizona Supreme Court affirmed

Murray’s conviction and death sentence, finding no

constitutional infirmity. State v. Murray, 906 P.2d 542 (Ariz.

1995) (in banc). Murray’s subsequent motion for

reconsideration was denied. Likewise, Murray’s petition for

certiorari was denied by the United States Supreme Court.

MURRAY V. SCHRIRO 13

Murray v. Arizona, 518 U.S. 1010 (1996). Murray then filed

a petition for post-conviction relief (“PCR1”) in Arizona state

court. The state court denied the PCR1 and the Arizona

Supreme Court summarily denied review.

In light of the Supreme Court’s intervening ruling in Ring

v. Arizona, 536 U.S. 584 (2002), Murray moved to stay the

federal habeas proceedings. The district court granted a stay

limited to the sentencing-related claims and directed Murray

to pursue additional state post-conviction relief for his

potential Ring claim.

After the Arizona Supreme Court denied review, the

district court’s stay was lifted and Murray filed a “Motion for

Leave to File a Second Amended Petition for Habeas

Corpus.” Murray’s proposed Second Amended Petition

attempted to include his previously withdrawn claims, as well

as one new claim, in his federal habeas petition. The district

court denied Murray’s motion to amend. The district court

denied Murray’s First Amended Petition for Writ of Habeas

Corpus on the merits and declined to issue a certificate of

appealability. Murray filed a timely Notice of Appeal.

II. STANDARD OF REVIEW

A. Certified Claims—Batson and Ineffective Assistance of

Counsel

We review de novo the district court’s denial of a petition

for writ of habeas corpus. Lopez v. Thompson, 202 F.3d

1110, 1116 (9th Cir. 2000) (en banc). However, because

Murray filed his federal habeas petition on October 7, 1999,

after AEDPA’s effective date, we are bound by AEDPA. See

14 MURRAY V. SCHRIRO

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

banc) (specifying April 24, 1996 as AEDPA’s effective date).

AEDPA authorizes the grant of a state prisoner’s petition

for a writ of habeas corpus when the relevant state-court

decision was (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court” or (2) “based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d).

Under AEDPA, we review the last reasoned state-court

decision. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.

2005). When a state court does not explain the reason for its

decision, we “look through” to the last state-court decision

that provides a reasoned explanation capable of review.

Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir.

2000). At times, however, no state-court decision furnishes

a basis for the state court’s underlying reasoning. In such a

circumstance, our duty under AEDPA is not absolved. See

Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011)

(presuming that a state court’s unexplained, summary denial

of the prisoner’s habeas petition constituted an adjudication

on the merits); see also Johnson v. Williams, 133 S. Ct. 1088,

1096 (2013) (applying Richter’s presumption to a state-court

decision that addressed some, but not all, of a defendant’s

federal claims). “[T]he habeas petitioner’s burden still must

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

court to deny relief.” Richter, 131 S. Ct. at 784. To assess

whether a petitioner has met this burden, we must ask “what

arguments or theories supported or . . . could have supported

. . . the state court’s decision,” and determine “whether it is

possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a

MURRAY V. SCHRIRO 15

prior decision of” the Supreme Court. Id. at 786. Thus,

“‘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) (quoting Delgado v. Lewis,

223 F.3d 976, 982 (9th Cir. 2000)). “Crucially, this is not a

de novo review of the constitutional question,” id., as “‘even

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

contrary conclusion was unreasonable,’” id. (quoting Richter,

131 S. Ct. at 786.).

1. Contrary to, or an Unreasonable Application of

Clearly Established Federal Law Under § 2254(d)(1)

Clearly established Federal law “refers to the holdings, as

opposed to the dicta, of th[e Supreme] Court’s decisions as of

the time of the relevant state-court decision.” Lockyer v.

Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v. Taylor,

529 U.S. 362, 412 (2000)). Obviously, a state-court decision

cannot be contrary to clearly established Federal law that was

not yet in existence.

Our precedent cannot be mistaken for clearly established

Supreme Court law. Marshall v. Rodgers, 133 S. Ct. 1446,

1450–51 (2013) (per curiam); Parker v. Matthews, 132 S. Ct.

2148, 2155 (2012) (per curiam).

Although an appellate panel may, in

accordance with its usual law-of-the-circuit

procedures, look to circuit precedent to

ascertain whether it has already held that the

particular point in issue is clearly established

by Supreme Court precedent, it may not

16 MURRAY V. SCHRIRO

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 this Court, be accepted as correct.

Marshall, 133 S. Ct. at 1450–51 (internal citations omitted).

“[C]ircuit precedent may [not] be used to refine or sharpen a

general principle of Supreme Court jurisprudence into a

specific legal rule that [the Supreme] Court has not

announced.” Id. at 1450. Thus, we must keep in mind that

“only the Supreme Court’s holdings are binding on the state

courts and only those holdings need be reasonably applied.”

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003),

overruled on other grounds by Lockyer v. Andrade, 538 U.S.

63, 71 (2003).

Section 2254(d)(1) provides that a state-court decision

may be “contrary” to Supreme Court precedent in two

circumstances. First, a state-court decision is contrary to

Federal law if “the state court arrives at a conclusion opposite

to that reached by th[e Supreme] Court on a question of law,”

or “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent

and arrives at a result opposite to [the Supreme Court].”

Williams, 529 U.S. at 405. Thus, the “contrary to” prong

requires a direct and irreconcilable conflict with Supreme

Court precedent.

Second, § 2254(d)(1) provides that a state-court decision

might offend clearly established Federal law in a manner

actionable under AEDPA where the state-court decision is an

unreasonable application of Supreme Court precedent. A

state-court decision is an “unreasonable application” of

Supreme Court precedent if “the state court identifies the

MURRAY V. SCHRIRO 17

correct governing legal rule from th[e Supreme] Court’s cases

but unreasonably applies it to the facts of the particular state

prisoner’s case,” or “the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to

a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it

should apply.” Id. at 407. It is not, however, “an

unreasonable application of clearly established Federal law

for a state court to decline to apply a specific legal rule that

has not been squarely established by th[e Supreme] Court.”

Richter, 131 S. Ct. at 786 (alteration omitted). Because, like

state courts, we have responsibility for direct review of

federal criminal appeals, we may have developed our own

body of constitutional law independent of the Supreme Court.

A state-court decision that we determine to be inconsistent

with our cases is not necessarily “objectively unreasonable”

and therefore an unreasonable application of clearly

established Federal law “as determined by the Supreme

Court.” Id.; see also Marshall v. Rodgers, 133 S. Ct. at

1450–51 (noting the division of authority between the state

court and the federal circuit court, expressing no view on the

merits of the underlying claim, and reversing the grant of

habeas). The deferential standard imposed under AEDPA

cloaks a state court’s determination with reasonableness, so

long as “fairminded jurists could disagree” as to whether a

claim lacks merit. Yarborough v. Alvarado, 541 U.S. 652,

664 (2004). This test is “highly deferential . . . [and]

demands that state-court decisions be given the benefit of the

doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

It is important to note, however, that under either prong

a state court’s decision does not need to cite the Supreme

Court’s cases, “indeed, [the state court] does not even [need

to be] aware[] of [the Supreme Court’s] cases, so long as

18 MURRAY V. SCHRIRO

neither the reasoning nor the result of the state-court decision

contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per

curiam); see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

Thus, so long as the state court’s decision is not inconsistent

with Supreme Court precedent, AEDPA bars relief under

28 U.S.C. § 2254(d)(1).

Along with the significant deference AEDPA requires us

to afford state courts’ decisions, AEDPA also restricts the

scope of the evidence that we can rely on in the normal

course of discharging our responsibilities under § 2254(d)(1).

Under § 2254(d)(1), our review is “limited to the record that

was before the state court that adjudicated the claim on the

merits.” Pinholster, 131 S. Ct. at 1398. Thus, AEDPA’s

“backward-looking language requires an examination of the

state-court decision at the time it was made. It [then

logically] follows that the record under review is limited to

the record in existence at that same time, i.e., the record

before the state court.” Id.

2. Unreasonable Determination of the Facts in Light of

the Evidence Presented in the State Court Proceeding

Under §§ 2254(d)(2) and (e)(1)

AEDPA has two provisions governing the review of a

state court’s determinations of fact. Section 2254(d)(2)

states:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim . . . resulted in a

MURRAY V. SCHRIRO 19

decision that was based on an unreasonable

determination of the facts in light of the

evidence presented in the State court

proceeding.

Section 2254(e)(1), however, lends state-court determinations

of fact a presumption of correctness:

In a proceeding instituted by an application

for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State

court, a determination of a factual issue made

by a State court shall be presumed to be

correct. The applicant shall have the burden of

rebutting the presumption of correctness by

clear and convincing evidence.

Together, these two provisions govern factual challenges to

a state-court conviction on collateral review. There is some

confusion, however, in our cases over the interaction between

these two provisions.

In Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), we

read these two provisions to apply to two different types of

challenges. First, we read § 2254(d)(2) to govern habeas

petitions “based entirely on the state record.” Id. at 999. This

we termed an “intrinsic” challenge to the state court’s

determination of fact. Id. at 999–1000. A successful intrinsic

challenge may be based on a claim that the state-court

decision is based on a “finding [that] is unsupported by

sufficient evidence”; “the process employed by the state court

[wa]s defective”; or “that no finding was made by the state

court at all,” when it was required to make a finding. Id. at

20 MURRAY V. SCHRIRO

999. An intrinsic review requires that we “be particularly

deferential to our state-court colleagues.” Id. at 1000.

We said in Taylor that when we perform an intrinsic

review, we may only hold that a state court’s decision was

based on an unreasonable determination of the facts if “we

[are] convinced that an appellate panel, applying the normal

standards of appellate review, could not reasonably conclude

that the finding is supported by the record.” Id. Accordingly,

we said that we may only hold that a state court’s factfinding

process is materially defective if we are “satisfied that any

appellate court to whom the defect is pointed out would be

unreasonable in holding that the state court’s fact-finding

process was adequate.” Id.

Second, we read § 2254(e)(1) to apply where the habeas

petitioner wishes to introduce facts outside the state court

record, “i.e., evidence presented for the first time in federal

court.” Id. This we termed, an “extrinsic” challenge to the

state court’s determination of fact. Id. Under this provision,

if a habeas petitioner fails to raise any intrinsic challenge, or

after our own intrinsic review we determine that the state

court’s decision was not based on an intrinsically

unreasonable determination of fact, then “the state court’s

findings are dressed in a presumption of correctness, which

then helps steel them against any challenge based on extrinsic

evidence, i.e., evidence presented for the first time in federal

court.” Id. Thus, we explained in Taylor, “the presumption

of correctness and the clear-and-convincing standard of proof

only come into play once the state court’s fact-findings

survive any intrinsic challenge; they do not apply to a

challenge that is governed by the deference implicit in the

‘unreasonable determination’ standard of section 2254(d)(2).”

Id. Under Taylor, §§ 2254(d)(2) and (e)(1) are read

MURRAY V. SCHRIRO 21

separately and must not be confused. See, e.g., Kesser v.

Cambra, 465 F.3d 351, 358 n.1 (9th Cir. 2006) (en banc);

Buckley v. Terhune, 397 F.3d 1149, 1154–55 (9th Cir. 2005),

affirmed on other grounds by 441 F.3d 688 (9th Cir. 2006)

(en banc).

Pinholster eliminated the relevance of “extrinsic”

challenges when we are reviewing state-court decisions under

AEDPA, however, because it held that petitioners may

introduce new evidence in federal court only for claims that

we review de novo. See Pinholster, 131 S. Ct. at 1400–01 &

nn. 7, 10; see also Stokley v. Ryan, 659 F.3d 802, 807–08 (9th

Cir. 2011). Thus Taylor’s suggestion that an “extrinsic”

challenge may occur “once the state court’s fact-findings

survive any intrinsic challenge” under § 2254(d)(2) is no

longer applicable. See Taylor, 366 F.3d at 1000. After

Pinholster, a federal habeas court may consider new evidence

only on de novo review, subject to the limitations of

§ 2254(e)(2).1 See Stokley, 659 F.3d at 808.

How we should now read § 2254(d)(2) and (e)(1) in

context of “intrinsic” challenges to state-court factual

1

If an applicant for habeas relief “has failed to develop the factual basis

of a claim in State court proceedings,” § 2254(e)(2) bars federal courts

from holding an evidentiary hearing except in two circumstances: (1) “the

claim relies on . . . a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously

unavailable”; or (2) “the claim relies on . . . a factual predicate that could

not have been previously discovered through the exercise of due

diligence.” 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii). If one of these

circumstances is present, then the applicant must also show that “the facts

underlying the claim would be sufficient to establish by clear and

convincing evidence that but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying

offense.” Id. § 2254(e)(2)(B).

22 MURRAY V. SCHRIRO

findings under AEDPA presents a more complicated

question. In the years since we decided Taylor, both the

Supreme Court and we have occasionally read §§ 2254(d)(2)

and (e)(1) as though they were to be read together. That is,

we have read § 2254(d)(2) to require an “unreasonable

determination of fact” with § 2254(e)(1) specifying that the

state court’s presumption of correctness can only be

overcome by clear and convincing evidence. This

inconsistency is highlighted in cases, such as this one, where

we have reviewed a state court’s Batson determination using

comparative juror analysis.

For example, in Miller-El v. Dretke, 545 U.S. 231 (2005),

the Supreme Court cited § 2254(d)(2) when stating that

“Miller-El [could] obtain relief only by showing the Texas

conclusion to be ‘an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding.’” Id. at 240. In the next breath it continued,

however, by citing § 2254(e)(1) for the “presum[ption that]

the Texas court’s factual findings [are] sound unless [the

petitioner] rebuts the ‘presumption of correctness by clear

and convincing evidence.’” Id. (quoting 28 U.S.C.

§ 2254(e)(1)). In Rice v. Collins, the Court again assumed

that § 2254(e)(1) qualified (d)(2). After quoting

§ 2254(d)(2), the Court stated that “[s]tate-court factual

findings, moreover, are presumed correct; the petitioner has

the burden of rebutting the presumption by ‘clear and

convincing evidence.’” 546 U.S. 333, 338–39 (2006) (quoting

28 U.S.C. § 2254(e)(1)); see also Schriro v. Landrigan,

550 U.S. 465, 473–74 (2007); Wiggins v. Smith, 539 U.S.

510, 528 (2003); Miller-El v. Cockrell, 537 U.S. 322, 341–42

(2003).

MURRAY V. SCHRIRO 23

The Court agreed to address the relationship between

§ 2254(d)(2) and (e)(1) in Wood v. Allen, 558 U.S. 290

(2010). Indeed, the Court stated that it granted certiorari to

resolve the question of “whether § 2254(e)(1) applies in every

case presenting a challenge under § 2254(d)(2).” Id. at 300.

And the Court recognized that (d)(2) and (e)(1) address

separate kinds of challenges. Id. at 299–300 & nn.1–2. In the

end, however, the Court declined to address “any interpretive

difference regarding the relationship between these

provisions,” and left “for another day the questions of how

and when § 2254(e)(1) applies in challenges to a state court’s

factual determinations under § 2254(d)(2).” Id. at 300,

304–05.

Notwithstanding the force of Taylor, we too have

continued to struggle with the relationship between

§§ 2254(d)(2) and (e)(1) when reviewing state-court factual

findings under AEDPA. In our en banc decision in Kesser,

we criticized the dissent for ignoring Taylor and observed

that “[b]ecause the evidence of the prosecutor’s bias is found

in the record that was before the California Court of Appeal,

we are governed by § 2254(d)(2) rather than § 2254(e)(1).”

Kesser, 465 F.3d at 358 n.1; see also Lambert v. Blodgett,

393 F.3d 943, 971–73 & n.19 (9th Cir. 2004). At the same

time, we further noted, however, that “[i]n any event, the

question of which AEDPA standard we apply here may be

academic, because the record satisfies either standard.”

Kesser, 465 F.3d at 358 n.1. Our ultimate decision was

consistent with this position. We cited § 2254(d)(2) to hold

that “[o]n the basis of the record, . . . the California Court of

Appeal’s conclusion that the prosecutor did not strike Rindels

because she was Native American [was] wrong, and

unreasonably so.” Id. at 368. We continued, however, by

citing § 2254(e)(1) and stating that “we th[ought] the record

24 MURRAY V. SCHRIRO

so strong on this point that it cannot admit any other

conclusion, and even satisfies the more demanding standard

of ‘rebutting the presumption of correctness by clear and

convincing evidence.’” Id.

Since Kesser, our panel decisions appear to be in a state

of confusion as to whether § 2254(d)(2) or (e)(1), or both,

applies to AEDPA review of state-court factual findings.

Compare, e.g., Jamerson v. Runnels, 713 F.3d 1218, 1227–36

(9th Cir. 2013) (citing only § 2254(d)(2) and finding in each

relevant situation that “the state was not unreasonable in

finding that the prosecutor’s justification for challenging [the

individual jurors] was genuine”); Hurles v. Ryan, 706 F.3d

1021, 1038 (9th Cir. 2013) (“[W]e cloak the state court’s

factual findings in a presumption of correctness. 28 U.S.C.

§ 2254(e)(1). However, we afford such deference only if the

state court’s fact-finding process survives our intrinsic review

pursuant to AEDPA’s ‘unreasonable determination’ clause.”),

with, e.g., Thompson v. Runnels, 705 F.3d 1089, 1091–92 (9th

Cir. 2013) (“We begin with the facts found by the California

Court of Appeal, which are presumed to be correct. See

28 U.S.C. § 2254(e)(1).”); Cudjo v. Ayers, 698 F.3d 752, 755

n.2, 762 (9th Cir. 2012) (stating that state court facts are

“afforded a presumption of correctness that may be rebutted

only by clear and convincing evidence”); Briggs v. Grounds,

682 F.3d 1165, 1171 (9th Cir. 2012) (citing § 2254(e)(1) for

the proposition that “[t]he burden to disprove the factual

findings rests with [the petitioner]”).

We believe any tension between Taylor and our cases or

between Taylor and limited statements by the Supreme Court

will have to be resolved by our court en banc, or by the

Supreme Court. As we will discuss, infra, we do not believe

the difference between our two lines of cases is determinative

MURRAY V. SCHRIRO 25

in this case, and thus we need not resolve the apparent

conflict to decide this case. We thus will review Murray’s

challenges to state-court findings that are based entirely on

the record for “an unreasonable determination of the facts.”

See 28 U.S.C. § 2254(d)(2); Kesser, 465 F.3d at 358 n.1. We

do not consider any new evidence as to claims adjudicated on

the merits by the state court. See Pinholster, 131 S. Ct. at

1401.

B. Uncertified Issue—Motion to Expand Certificate of

Appealability

In addition to his Batson and ineffective assistance of

counsel claims, Murray has elected to brief an uncertified

issue regarding the district court’s decision to deny his

“Motion for Leave to File a Second Amended Petition for

Writ of Habeas Corpus.” As explained below, we treat

Murray’s uncertified claim as a motion to expand the

certificate of appealability (“COA”) that we previously

granted. Under Federal Rule of Appellate Procedure

22(b)(2), a notice of appeal constitutes an application for a

COA. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).

Thus, where “a motions panel grants a COA in part and

denies a COA in part,” “[u]ncertified issues raised and

designated in [the manner prescribed by Ninth Circuit Rule

22-1] will be construed as a motion to expand the COA and

will be addressed by [us] to such extent as [we] deem[]

appropriate.” 9th Cir. R. 22-1(d)–(e).

A COA may issue in federal habeas review of state

proceedings “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816,

825–26 (9th Cir. 2009). This is not an exacting standard. Id.

26 MURRAY V. SCHRIRO

at 826. We will “not decline the application for a COA

merely because [we] believe[] the applicant will not

[ultimately] demonstrate an entitlement to relief.” Miller-El,

537 U.S. at 337. Rather, we will issue a COA “if jurists of

reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right.” Wilson,

554 F.3d at 826.

If, however, the district court

denies a habeas petition on procedural

grounds without reaching the prisoner’s

underlying constitutional claim, a COA

should issue when . . . jurists of reason would

find it debatable whether the petition states a

valid claim of the denial of a constitutional

right and that jurists of reason would find it

debatable whether the district court was

correct in its procedural ruling.

Slack, 529 U.S. at 484 (emphasis added). “Where a plain

procedural bar is present and the district court is correct to

invoke it to dispose of the case, a reasonable jurist could not[,

however,] conclude either that the district court erred in

dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

If both inquiries are satisfied, we will grant a COA. See

Hoffman v. Arave, 455 F.3d 926, 943–44 (9th Cir. 2006),

vacated in part on other grounds by Arave v. Hoffman,

552 U.S. 117 (2008); United States v. Martin, 226 F.3d 1042,

1046–47 (9th Cir. 2000).

MURRAY V. SCHRIRO 27

III. DISCUSSION

A. Batson Claim

Murray’s primary claim is that the state court’s denial of

his Batson objection was contrary to, or involved an

unreasonable application of, clearly established Federal law,

or based upon an unreasonable determination of the facts. He

raises two separate points. First, Murray contends that the

state court’s failure to engage in a comparative juror analysis

alone is an unreasonable application of clearly established

Federal law. Second, Murray asserts that an independent

evaluation of the voir dire transcript, application of

comparative juror analysis, and a consideration of the fact

that the prosecutor relied on subjective factors “clearly and

convincingly” refutes the prosecutor’s proffered race-neutral

explanations for the exercise of the peremptory challenges

used to dismiss the two Hispanic potential jurors.

The exercise of peremptory challenges on the basis of

potential jurors’ race violates the Equal Protection Clause of

the Fourteenth Amendment. Batson v. Kentucky, 476 U.S.

79, 89 (1986). “Racial discrimination in [the] selection of

jurors harms not only the accused whose life or liberty they

are summoned to try[, but also] . . . extends beyond that

inflicted on the defendant and the excluded juror to touch the

entire community.” Id. at 87. Batson provides a three-step

inquiry to determine if a peremptory challenge was based on

race:

First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised on the basis of race[; s]econd, if that

showing has been made, the prosecution must

28 MURRAY V. SCHRIRO

offer a race-neutral basis for striking the juror

in question[; and t]hird, in light of the parties’

submissions, the trial court must determine

whether the defendant has shown purposeful

discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008).

Under the first prong, a defendant may rely upon “all

relevant circumstances” when making a prima facie showing

that a prosecutor’s challenge was exercised based on race.

Miller-El, 545 U.S. at 240. If the defendant satisfies this

initial burden, then the burden shifts to the prosecutor.

Batson’s second prong requires the prosecutor to “give a clear

and reasonably specific explanation of [the prosecutor’s]

legitimate reasons for exercising the challenge[].” Batson,

476 U.S. at 98 n.20 (internal quotation marks omitted). That

explanation need not be “persuasive, or even plausible.”

Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)

(internal quotation marks omitted). Rather, under the second

prong, “the issue is the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent is inherent in the

prosecutor’s explanation, [we will deem] the reason offered

[to] be . . . race neutral.” Id. Only Batson’s final step

requires the trial court to judge the persuasiveness of the

prosecutor’s explanation to determine whether the defendant

has ultimately satisfied the burden of proving racial

discrimination in the prosecutor’s exercise of peremptory

challenges. Id.2

2

As the Supreme Court has stated:

It is not until the third step that the persuasiveness of

the justification becomes relevant—the step in which

MURRAY V. SCHRIRO 29

Arguably, the third prong is the most important part of a

Batson inquiry because it is at that step that “the court has the

duty to determine if the defendant has established purposeful

discrimination.” Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.

2003) (internal quotation mark omitted). This analysis “turns

largely on the court’s evaluation of the prosecutor’s

credibility,” making the trial judge’s own observations

critical at this juncture. Id. (internal quotation marks

omitted). When weighing the persuasiveness of the

prosecutor’s explanation, however, a trial judge must be

conscious that “subjective factors may play a legitimate role

in the exercise of challenges, [although] reliance on such

factors alone cannot overcome strong objective indicia of

discrimination.” Kesser, 465 F.3d at 359 (en banc) (quoting

Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994)). A court

“must evaluate the record and consider each explanation

within the context of the trial as a whole because [a]n

invidious discriminatory purpose may often be inferred from

the totality of the relevant facts.” Id. (internal quotation marks

and citations omitted). The “totality of the relevant facts”

the trial court determines whether the opponent of the

strike has carried his burden of proving purposeful

discrimination. At that stage, implausible or fantastic

justifications may (and probably will) be found to be

pretexts for purposeful discrimination. But to say that

a trial judge may choose to disbelieve a silly or

superstitious reason at step three is quite different from

saying that a trial judge must terminate the inquiry at

step two when the race-neutral reason is silly or

superstitious. The latter violates the principle that the

ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the

opponent of the strike.

Purkett, 514 U.S. at 768 (internal citations omitted).

30 MURRAY V. SCHRIRO

includes “the prosecutor’s statements about his jury selection

strategies and his explanations (racial and nonracial) for

striking minority jurors. They also include the characteristics

of people he did not challenge.” Id. at 360 (internal citation

omitted). Thus, we have long held that a comparative juror

analysis is an important tool at the disposal of a trial or

appellate judge for evaluating the totality of the relevant facts

and “exploring the possibility that facially race-neutral

reasons are a pretext for discrimination.” Lewis, 321 F.3d at

830–31.

Because Murray has asserted that both sections

2254(d)(1) and (d)(2) entitle him to federal habeas relief, we

will consider each in turn.

1. Batson and Section 2254(d)(1)

Murray has only challenged the state court’s failure to

conduct a formal comparative juror analysis under

§ 2254(d)(1). It is not disputed that neither the state trial

court nor the appellate court undertook a formal comparative

juror analysis. Murray argues that clearly established Federal

law requires state courts to conduct a formal comparative

juror analysis.

In support of his contention, Murray predominantly relies

upon the Supreme Court’s decision in Miller-El v. Dretke,

where the Court relied heavily on its own thorough

comparative juror analysis in granting the petitioner federal

habeas relief. 545 U.S. at 240–52, 266. In Kesser v. Cambra,

we recognized the importance of the Supreme Court’s

decision in Miller-El and held that “[t]he Court’s holding

means that the principles expounded in Miller-El were clearly

established Supreme Court law for AEDPA purposes at least

MURRAY V. SCHRIRO 31

by the time of the last reasoned state court decision in Miller-

El, handed down in 1992.” 465 F.3d at 360. Here, the

relevant state-court decision was decided in 1995, State v.

Murray, 906 P.2d 542 (Ariz. 1995) (in banc). Therefore, the

same Supreme Court principles we declared to be clearly

established in Kesser would be controlling here.

Under Murray’s reading of Miller-El, a state court must

conduct a formal comparative juror analysis when

confronting a Batson claim. Such a legal error under

§ 2254(d)(1) would require us to grant a petitioner’s habeas

petition without even undertaking a comparative juror

analysis of our own. In effect, Murray asks us to treat

whether or not the trial court conducted a comprehensive,

formal comparative juror analysis as a kind of structural

error—a per se legal requirement of the Equal Protection

Clause of the Fourteenth Amendment, with prejudice

presumed. Miller-El did not establish any such principle of

law. Neither Batson nor the Supreme Court cases following

it clearly establish that trial courts must conduct a formal

comparative analysis. Batson did not specify the form of the

trial court’s inquiry into the prosecutor’s motive, only that it

must “undertake a sensitive inquiry into such circumstantial

and direct evidence of intent as may be available.” Batson,

476 U.S. at 93 (internal quotation mark omitted). We think

it obvious that it would be contrary to clearly established

Federal law—the “sensitive inquiry”—for a trial judge to

“rubberstamp” a prosecutor’s proffered race-neutral

explanation for exercising a disputed peremptory strike.

Similarly, we might find a clear violation of Batson where the

trial judge misstates the test or impermissibly relies on an

erroneous factor. See, e.g., Turner v. Marshall, 63 F.3d 807,

814 (9th Cir. 1995), overruled on other grounds by Tolbert v.

Page, 182 F.3d 677 (9th Cir. 1999). But, beyond these

32 MURRAY V. SCHRIRO

intuitive violations, Batson did not dictate the formal steps

the trial court must take to evaluate the prosecutor’s

credibility, it only established that the trial court must do so.

Batson and the cases that follow it do not require trial

courts to conduct a comparative juror analysis. Rather, what

Miller-El established is that a comparative juror analysis is an

important means for federal courts to review a trial court’s

ruling in a Batson challenge. A close look at Miller-El

reveals that the Court conducted its own formal comparative

juror analysis to make factual comparisons with the state

court’s factual determinations. Thus, the Court was using a

formal comparative juror analysis to review the

reasonableness of the factual determinations underlying the

state court’s decision. If the mere failure of the state court to

conduct a formal comparative juror analysis had been

contrary to the Fourteenth Amendment, the Miller-El Court

would have simply reversed for procedural error. But it did

not. The Court’s approach makes sense, however, when we

focus on our respective roles. We have recognized that

“[w]ithout engaging in comparative juror analysis, we are

unable to review meaningfully whether the trial court’s ruling

at either step one or step three of Batson was unreasonable in

light of Supreme Court precedent.” Boyd v. Newland,

467 F.3d 1139, 1149 (9th Cir. 2006) (emphasis added). That

is, in order for us to discharge our responsibility under

AEDPA to review a Batson claim under section 2254(d)(2),

we often will have to conduct a formal comparative juror

analysis, and our responsibility to conduct a comparative

juror analysis is not contingent on whether the state court

previously performed or did not perform a formal

comparative juror analysis. When there has been a Batson

challenge, trial courts are not always situated to stop the

proceedings and conduct the kind of formal comparative juror

MURRAY V. SCHRIRO 33

analysis the Court conducted in Miller-El. Often, trial courts

are well-situated to decide the question without conducting a

formal comparative juror analysis because the trial court has

had access to the juror questionnaires and has been intimately

involved in the jury selection process. The trial judge has a

front-row seat in the orchestra, making it possible for the trial

court to rule quickly on spontaneous Batson challenges.

Federal appellate courts are not similarly situated. From our

lofty perch in the loges, where we are separated by time and

distance from the proceedings, we must conduct a more

formal comparative juror analysis because it is the only

means we will have for assessing the state court’s

factfinding.3

Once we conclude that the trial court has conducted an

adequate inquiry under Batson, our review must shift from

§ 2254(d)(1) to a review of the reasonableness of the state

court’s factual determinations under § 2254(d)(2). See

3

Some of our panel decisions may be read to suggest that a state trial

court is required to perform a formal comparative juror analysis. For

example, in Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008), we stated

that “the trial court failed to undertake a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available, including

a comparative analysis of similarly situated jurors, as required by clearly

established Supreme Court law at the time of the trial.” Id. at 1030

(internal quotation marks omitted). We do not think Green so holds. As

in Miller-El, Green relied on 28 U.S.C. § 2254(d)(2) and not (d)(1). Id.

at 1033. Thus, the better reading of Green is that a comparative juror

analysis is one of many tools available to undertake such a “sensitive

inquiry.” See id. at 1030 (“The ‘circumstantial and direct evidence’

needed for this inquiry may include a comparative analysis of the jury voir

dire and the jury questionnaires of all venire members.”) (emphasis

added). This reading is in harmony with our recent holding in Jamerson

v. Runnels, 713 F.3d 1218, 1224 n.1 (9th Cir. 2013); see also Cook v.

LaMarque, 593 F.3d 810, 816 & n.2 (9th Cir. 2010).

34 MURRAY V. SCHRIRO

Jamerson, 713 F.3d at 1225–26 (9th Cir. April 24, 2013);

Cook v. LaMarque, 593 F.3d 810, 816 n.2 (9th Cir. 2010).

Thus, so long as sufficient facts exist to show that a trial court

has satisfied its duty under Batson’s third step, our review is

limited to § 2254(d)(2).

Because Murray has only challenged the state court’s

determination under § 2254(d)(1) for its failure to undertake

a comparative juror analysis and this claim is without merit,

we next proceed to review Murray’s Batson claim under

§ 2254(d)(2).

2. Batson and Section 2254(d)(2)

The Arizona Supreme Court, ruling on Murray’s Batson

claim, accepted the trial court’s finding that the “prosecutor’s

reasons [were] race neutral” and held that the trial court did

not abuse its discretion by denying Murray’s Batson

objection. Murray, 906 P.2d at 557–58. The Arizona

Supreme Court’s decision does not itself discuss the

evidence—by, for example, conducting its own comparative

juror analysis—it only concludes that the trial judge’s

determination as to potential juror Alvardo was not “wholly

subjective.” Id. Although the Arizona Supreme Court’s

decision is a ruling on the merits of Murray’s Batson claim,

it is not for our purposes a “reasoned decision.” Cf. Barker

v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005) (finding

a state court’s decision to be reasoned where it “explained in

detail why review was denied and specifically examined the

substance of [the individual’s] claim”). That is, the decision

does not provide us with an explanation for why the Arizona

Supreme Court determined that there was no purposeful

discrimination by the prosecutor in the exercise of the

peremptory strikes against potential jurors Pethers and

MURRAY V. SCHRIRO 35

Alvardo; rather, the court merely stated that it accepted the

trial judge’s observations and “the prosecutor’s reasons as

race neutral.” Murray, 906 P.2d at 558. Because the Arizona

Supreme Court’s decision did not provide the reasoning

underlying its decision finding that there was no purposeful

discrimination under Batson, we must look through the

Arizona Supreme Court’s decision to the state trial court’s

decision as the reasoned decision. See Medley v. Runnels,

506 F.3d 857, 862 (9th Cir. 2007) (“On habeas review, we

look through unexplained state-court decisions leaving, in

effect, the denial of post-conviction relief to the last reasoned

state-court decision to address the claim at issue.”).

At trial, Murray asserted that the prosecutor had struck the

“only two Hispanic jurors which were in the pool.” Murray

then requested that the court order the prosecutor to respond.

Subsequently, the prosecutor offered his reasons for his

exercise of peremptory challenges against potential jurors

Pethers and Alvardo, and the trial court credited his

explanation.

With respect to potential juror Pethers, the prosecutor

focused on a major drug investigation that had centered on

her mother and uncle. All potential jurors were asked if they

knew anyone who worked for the Mohave County Attorney’s

office, since that office was prosecuting the Murray brothers.

The scrutiny of potential juror Pethers began when she

indicated that she knew Bob Moon, who worked for the

Mohave County Attorney’s office, because of her mother’s

case. Potential juror Pethers’s mother and uncle had both

spent time in jail, and even though the charges against her

mother had been dismissed, the prosecutor stated that he

believed a deal had been negotiated in her mother’s case. The

prosecutor emphasized that potential juror Pethers’s mother

36 MURRAY V. SCHRIRO

and uncle “were heavy into drugs,” “[b]oth of the people

around them were suspected of being in drugs,” and there was

a forfeiture action proceeding against her mother. The

prosecutor stood upon these facts to support his challenge of

potential juror Pethers.

As for potential juror Alvardo, the prosecutor’s

explanation was that he was excessively nice, to the point that

he was indecisive. The prosecutor based this explanation on

his personal knowledge from having been socially acquainted

with Alvardo.

After the prosecutor provided his explanations, the trial

judge stated:

Well, under Batson, of course, the real

question is whether the State gives valid race

neutral reasons for the strike, and based on the

record, my own opinions about those two

particular jurors, I find that the reasons given

by the State are sufficient. It’s difficult to

make a Batson case when you only have two

minorities on the jury, but even with the two

I am finding that the reasons are sufficient. I

don’t find that there was any racial reasons for

the strikes, and the reasons are consistent with

my own assessments of those particular

jurors. So, the Batson objection is denied.

The trial court noted that only two potential jurors were

involved, at the same time acknowledging that the two

comprised all of “the minorities on the jury.” The trial judge

found the reasons proffered by the prosecutor “sufficient” and

could “[not] find that there was any racial reasons for the

MURRAY V. SCHRIRO 37

strike,” and that the reasons were “consistent with [his] own

assessments of those particular jurors.” The trial court’s

observations, however brief, are fully consistent with its

obligations under Batson.

Our obligations on AEDPA review, however, cannot be

based on our “own assessments of those particular jurors.”

Consistent with Miller-El, we have to conduct our own

comparative juror analysis to determine whether the trial

court’s “own assessments” constitute an “unreasonable

determination of the facts.” 28 U.S.C. § 2254(d)(2).

a. Potential Juror Pethers

On their face, the prosecutor’s proffered explanations for

his peremptory strike of potential juror Pethers are race-

neutral. The prosecutor explained that members of potential

juror Pethers’s family had been prosecuted by the Mohave

County Attorney’s office, and that her mother was still

subject to a forfeiture action. Those are legitimate grounds

for exercising a peremptory challenge. See Miller-El,

545 U.S. at 292–93 (“The very purpose of peremptory strikes

is to allow parties to remove potential jurors whom they

suspect, but cannot prove, may exhibit a particular bias.”).

Our comparative juror analysis supports the prosecutor’s

explanation. Murray points to potential jurors B and E1 as

similarly-situated, non-Hispanic jurors whose family

members were involved in illegal activity but who were not

challenged.4 These potential jurors are not, however,

4

As we previously stated in Kesser, when conducting a comparative

juror analysis “we necessarily include information about jurors and venire

members. Where these individuals’ identities have not been publicly

38 MURRAY V. SCHRIRO

similarly situated to potential juror Pethers. Potential juror B

is white and served on the jury. At the time of jury selection,

B’s brother-in-law was being represented by Roger Wayne

Murray’s counsel because he had recently “gotten a few

DUI’s.” B stated, however, that her brother-in-law’s situation

would not affect her ability to sit on the jury. As for potential

juror E1, his son-in-law had been charged with a drug

offense. The prosecutor requested that the court question E1

about his feelings regarding the criminal justice system

before deciding whether or not to exercise a peremptory

challenge. In response, E1 stated that his son-in-law’s

situation had not affected his thoughts about the criminal

justice system. In fact, when questioned about his feelings on

criminal sentencing, E1 stated that his “son-in-law was one

that got off too easy.”

There are similarities between these potential jurors. All

three potential jurors had family members who were involved

with the criminal justice system. All three claimed it would

not affect their ability to sit on the jury.

The differences among the three, however, are greater

than the similarities. First, the relationship between a mother

and a daughter is likely to be far closer than that of a woman

with her brother-in-law or a man with his son-in-law. The

affinity in the family relation was much closer in potential

juror Pethers’s case, creating a greater risk that she might be

influenced by her mother’s prosecution. Second, the

disseminated previously, we have chosen to preserve their privacy by

withholding their names.” 465 F.3d at 362 n.4. Here, we are going to

refer to these individuals by the first letter of their last name. In instances

where more than one juror’s last name start with an identical letter, they

are differentiated by a number (e.g., “Juror A1” and “Juror A2”).

MURRAY V. SCHRIRO 39

prosecution of potential juror Pethers’s mother stemmed from

what the prosecutor characterized as a major drug

investigation, including a criminal forfeiture, which is a far

cry from DUIs or simple drug possession offenses. Third,

potential juror Pethers had personally been in the county

attorney’s office with regards to the investigation at issue and

her mother’s prosecution. This fact, along with the

prosecutor’s statement that other people around potential

juror Pethers’s mother were suspected of involvement,

suggests that the prosecutor had reason to believe that

potential juror Pethers had some active interest in her

mother’s case. We need not strain to see the potential bias

inhering in such a situation. Moreover, potential juror

Pethers’s mother was contemporaneously subject to criminal

forfeiture proceedings that potentially had a direct economic

impact on Pethers. By contrast, B’s reaction illustrates her

ambivalence toward her brother-in-law’s legal troubles—

“He’s gotten a few DUI’s lately.” Similarly, E1’s

spontaneous statement that his son-in-law got off too easy

would tend to allay any questions that the prosecutor might

have as to bias. In sum, the prosecutor provided a persuasive,

race-neutral explanation for his peremptory challenge of

potential juror Pethers, and there was a reasonable basis for

the state court’s decision. Our comparative juror analysis

shows that the state court’s decision regarding potential juror

Pethers was not an unreasonable determination of the facts.

b. Potential Juror Alvardo

The prosecutor’s proffered explanation for his strike of

potential juror Alvardo is also race-neutral. The prosecutor’s

explanation was based solely on his own personal

acquaintance with Alvardo. Such “subjective factors [in the

prosecutor’s explanation] may [only] play a legitimate role in

40 MURRAY V. SCHRIRO

the exercise of [a] challenge[] . . . [where] reliance on such

factors alone [is not] overcome [by] strong objective indicia

of discrimination.” Kesser, 465 F.3d at 359. Relying solely

upon the prosecutor’s subjective impression based upon his

social interactions with potential juror Alvardo is, admittedly,

a soft factor that is so subjective that it is difficult to dispute.

The record also includes, however, the trial judge’s personal

impression of potential juror Alvardo based on his

observation of potential juror Alvardo during voir dire. The

trial judge’s own impressions and observations are worthy of

a great degree of deference and provide sufficient support for

the prosecutor’s otherwise unsubstantiated explanation,

particularly in the absence of any contention by Murray that

potential juror Alvardo was not actually indecisive.

Murray contends that both potential jurors E2 and J knew

the prosecutor, and the prosecutor presumably thought they

were “nice” people, just like potential juror Alvardo. It is

true that the prosecutor “used to be one of [E2’s] paper

customers when [she and her kids] had [a] paper route.”

Furthermore, in the course of these interactions, E2 had

spoken with the prosecutor “once in a while.” Likewise, J

was the prosecutor’s lodge brother. E2 and J were thus

acquaintances of the prosecutor just like potential juror

Alvardo. The prosecutor did not rely solely on his

acquaintance with Alvardo, however, but rather Alvardo’s

indecisive nature. There is no information in the record to

suggest that either E2 or J were indecisive. Moreover,

indecisiveness is a legitimate reason to exercise a peremptory

challenge. See Brown v. Lambert, 451 F.3d 946, 958 (9th Cir.

2005), reversed on other grounds by Uttecht v. Brown,

551 U.S. 1 (2007) (“It was not unreasonable for the trial

judge to conclude that . . . Juror Z was unfit to serve because

MURRAY V. SCHRIRO 41

of his indecisiveness, suggesting his inability to properly

follow the court’s instructions and apply the law.”).

We hold that, the state court’s decision was not an

unreasonable determination of the facts.

c. Racially Stereotyped Language

In addition to his comparative juror analysis claim,

Murray also makes much of the fact that the prosecutor began

his explanation for his peremptory challenges by stating that

he did not believe that potential juror Pethers was Hispanic.

In this regard, the prosecutor stated that he could not recall if

potential juror Pethers “appeared to talk Hispanic” and noted

that her maiden name, Garcia, could have been Spanish, as

opposed to Hispanic. Murray contends that these comments

alone, much like the circumstances underlying our decision

in Kesser, raise “questions regarding the prosecutor’s racial

and cultural stereotype of the Hispanic population.”

The prosecutor’s comments on Native Americans and

others were far more troubling in Kesser than the prosecutor’s

awkward explanation here. In Kesser, the prosecutor

“explained that the Native Americans who work for the tribe

are troublesome because they are more likely to associate

themselves with the culture and beliefs of the tribe instead of

our laws, and are likely to be resistive and somewhat

suspicious of the justice system.” Kesser, 465 F.3d at 362

(internal quotation marks omitted). Thus, in Kesser, the

prosecutor’s comments played on Native American culture as

the precise reason for challenging the juror. By their very

nature, such comments are not race-neutral. In Kesser, we

also noted that the prosecutor’s discussion of another

potential juror was relevant “because it indicates possible

42 MURRAY V. SCHRIRO

racial animus and so lends support to Kesser’s argument that

the prosecutor employed racial stereo-types throughout the

jury selection.” Id. at 369 n.6. The prosecutor had mentioned

that he “did not consider [the potential juror] to be Native

American, ‘but she was in fact brown skinned,’” although the

prosecutor could not determine by looking at her whether

“she was an [E]ast [I]ndian, a Chican[a], or a [F]ilipin[a].”

Id. Moreover, “[a]lthough [the potential juror] did not testify

about her relationship with her husband, the prosecutor was

convinced that ‘she was somewhat insecure and she

impressed [him] as a woman who would walk two steps to

the left and one to the rear.’” Id. We found that statement to

“smack[] of racial and ethnic stereotypes of the subservient

Asian woman.” Id.

Murray’s situation is quite different from Kesser. Here,

the prosecutor’s statements do not fairly appear to be

connected with the subsequent proffered race-neutral

explanation. Rather, on reflection, the prosecutor’s statement

may appear clumsy and politically incorrect, but the

comments fairly appear to be made to challenge the facts

proffered by Murray to establish his prima facie case of

purposeful discrimination. That is, the prosecutor was merely

attempting to question whether both jurors were actually

Hispanic; if they were not, then Murray would have failed to

establish his prima facie case. We cannot say that these

statements alone prove that a racial motivation was

underlying the prosecutor’s exercise of his peremptory

challenges.

We affirm the district court’s denial of Murray’s Batson

claim.

MURRAY V. SCHRIRO 43

B. Ineffective Assistance of Counsel Claim

The Superior Court of the State of Arizona for the County

of Mohave issued the only state-court decision regarding

Murray’s ineffective assistance of counsel claim, so it is the

only state-court decision that we can review. The decision,

however, merely concluded that Murray “fail[ed] to raise a

colorable issue of ineffective assistance of counsel” for trial

counsel’s alleged “[f]ailure to properly prepare for the

aggravation/mitigation hearing on the death penalty.”

Murray argues that the state court’s denial of his

ineffective assistance of counsel claim violates § 2254(d)(1)

as contrary to, or an unreasonable application of, clearly

established Federal law, and § 2254(d)(2) as being based on

an unreasonable determination of the facts. Murray contends

that O’Neill “failed to investigate and present readily-

available mitigation evidence to the sentencing court . . .

provid[ing] a[n] [in]complete picture of Murray’s troubled

childhood and impairments.” Murray asserts that O’Neill did

not begin preparations for the sentencing phase until after the

guilt phase had concluded and that those preparations did not

include: obtaining a complete set of his school, employment,

medical, prison, and probation records; and interviewing

members of his immediate family or his closest childhood

friends. Finally, Murray argues that O’Neill failed to provide

Dr. Potts with sufficient background information and that

O’Neill should have hired additional mental health experts

“to evaluate Murray and testify about his organic brain

damage and other neuropsychological problems.”

44 MURRAY V. SCHRIRO

1. Strickland Standard

The Sixth Amendment right to effective assistance of

counsel, applicable to the states through the Due Process

Clause of the Fourteenth Amendment, applies through the

sentencing phase of a trial. U.S. Const. amend. VI; U.S.

Const. amend. XIV, § 1; Gideon v. Wainwright, 372 U.S.

335, 343–45 (1963); Silva v. Woodford, 279 F.3d 825, 836

(9th Cir. 2002). The Supreme Court explained the legal

standard for assessing a claim of ineffective assistance of

counsel in Strickland v. Washington, 466 U.S. 668, 685–87

(1984). Strickland contains two prongs:

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

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.

Strickland’s first prong requires that “the defendant . . .

show that counsel’s representation fell below an objective

standard of reasonableness.” Id. at 688. “[T]he relevant

MURRAY V. SCHRIRO 45

inquiry . . . is not what defense counsel could have pursued,

but rather whether the choices made by defense counsel were

reasonable.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th

Cir. 1998). This inquiry is “highly deferential” to begin with,

Strickland, 466 U.S. at 689, and “doubly deferential” when

Strickland and AEDPA “operate in tandem.” Walker,

709 F.3d at 941 (citing Richter, 131 S. Ct. at 788) (internal

quotation marks omitted).

Counsel has a “duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary.” Id. at 691. In Wiggins v. Smith,

539 U.S. 510 (2003), the Supreme Court clarified that the

relevant inquiry “is not whether counsel should have

presented a mitigation case,” but rather, “whether the

investigation supporting counsel’s decision not to introduce

mitigating evidence of [a defendant’s] background was itself

reasonable.” Id. at 523. The Supreme Court stated that “[i]n

assessing counsel’s investigation, we must conduct an

objective review of their performance, measured for

‘reasonableness under prevailing professional norms,’ which

includes a context-dependent consideration of the challenged

conduct as seen ‘from counsel’s perspective at the time.’” Id.

(internal citation omitted). That is, “[n]o particular set of

detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense

counsel or the range of legitimate decisions.” Pinholster,

131 S. Ct. at 1406. We must therefore begin any ineffective

assistance of counsel inquiry “with the premise that ‘under

the circumstances, the challenged action[s] might be

considered sound trial strategy.’” Id. at 1404 (quoting

Strickland, 466 U.S. at 689).

46 MURRAY V. SCHRIRO

Strickland’s second prong requires that “[t]he defendant

. . . 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. Here, “the question

is whether there is a reasonable probability that, absent the

errors, the sentencer—including an appellate court, to the

extent it independently reweighs the evidence—would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695; see also

Rompilla v. Beard, 545 U.S. 374, 390 (2005) (examining

Strickland’s prejudice prong de novo, where the state courts

had never reached the issue of prejudice).

2. Application of 28 U.S.C. § 2254(d)

Murray claims that the state court’s decision was

“contrary to, or involved an unreasonable application of,

clearly established Federal law” under § 2254(d)(1). He also

argues that the state court’s rejection of his claim was “based

on an unreasonable determination of the facts” under

§ 2254(d)(2). As above, because there is no reasoned state-

court decision, we must undertake an independent review of

the record to determine if any reasonable basis supports the

state court’s decision. See Walker, 709 F.3d at 939.

Here, Murray has attempted to supplement the state-court

record with extrinsic evidence—affidavits, including

declarations by friends and family members, and expert

opinions relating to Murray’s psychiatric evaluation by Dr.

Potts. None of these materials were brought to the attention

of the state courts, but were first introduced before the district

court.

MURRAY V. SCHRIRO 47

The only evidence submitted before the state court with

respect to Murray’s ineffective assistance of counsel claim

was testimony elicited from O’Neill during a state-court

evidentiary hearing. That evidence was focused, however, on

O’Neill’s failure to call a Mr. Anthony as a witness, although

some general information was presented about O’Neill’s

overall lack of experience in handling serious felony and

death penalty cases. No evidence was presented before the

state court regarding O’Neill’s alleged failure to “contact

Murray’s closest childhood friends . . . and his two sisters,”

hire an investigator experienced in mitigation investigation,

or hire additional mental health experts. Because, as Murray

concedes, the state court decided this claim on the merits, we

may only consider the evidence that was before the state court

in our AEDPA review.5 See Pinholster, 131 S. Ct. at 1398.

Furthermore, our review is limited to whether “we [are]

convinced that an appellate panel, applying the normal

standards of appellate review, could not reasonably conclude

that the [state court’s] finding[s] [are] supported by the

record.” Taylor, 366 F.3d at 1000.

Our independent review of the state-court record reveals

the following. As part of Murray’s pre-sentence

memorandum, O’Neill appended a number of letters and

taped interviews with friends, family, co-workers, and other

acquaintances. These communications reveal that O’Neill

began investigating Murray’s background and preparing for

the sentencing hearing long before the guilt phase was

concluded. Further, it appears that O’Neill traveled from

Arizona to Alabama and personally interviewed individuals

5

Although Murray has previously made claims of ineffective assistance

of appellate counsel, those claims have all been denied and are not before

us.

48 MURRAY V. SCHRIRO

acquainted with Murray. We find that Murray’s contention

that O’Neill failed to begin preparations for the penalty phase

prior to the conclusion of the guilt phase is unfounded.

With respect to the thoroughness of counsel’s

investigation, a look at O’Neill’s pre-sentence memorandum

reveals that she and her investigator had contacted and

interviewed the following individuals, at least once: Joyce

Michael (ex-wife), Ruby Bradford (aunt), Hulon Murray

(uncle), Pete Hardee (friend and former co-worker), Tom

Hallman (ex-employer and family friend), Doug Price

(former classmate and friend), and David Lovelace (friend).

These individuals provided a wealth of information regarding

Murray’s background. Counsel elicited information

regarding Murray’s urinary and fecal incontinence and the

corresponding effects those difficulties had on him as a child,

Murray’s physically and verbally abusive childhood,

Murray’s failure in school, and Murray’s exposure to

weapons.

At Murray’s sentencing hearing, in addition to the pre-

sentence investigation and memorandum, O’Neill submitted

into evidence a number of letters written on Murray’s behalf.

The letters were written by: Justin Murray (son), Joyce

Murray (ex-wife), Brenda Murray (mother), Kenneth Murray

(father), Shonna Alexander (sister), Angela Hall (sister),

Keith Alexander (brother-in-law), Dolphus Bradford (uncle),

Karrie Murray, Leslie O’Dell, Barbara O’Dell, and Tom and

Ann Morgan.

Not all of this information, however, was introduced

through live testimony at the sentencing hearing. O’Neill

advised the trial court that

MURRAY V. SCHRIRO 49

the people that know my client, Robert

Murray, and have known him all of his life,

don’t live in Arizona, they live 2,000 miles

away or so in Alabama. A few of those

people are going to be able to come out and

testify. Most of them cannot for various

reasons.

A wealth of information was provided to the court in the best

possible way O’Neill could present it in light of geographical

and other constraints.

O’Neill did have three witnesses available to testify:

Brenda Murray (mother), Angela Hall (sister), and Ruby

Bradford (aunt). Brenda Murray testified about how

Murray’s father had physically abused him with his fists, at

least a dozen times. She further detailed Murray dropping out

of high school; working in his father’s bookie and night club

operations; being worked excessively by his father, even with

a broken collarbone; and being forced into a marriage at a

young age. Murray’s aunt, Ruby Bradford, testified

regarding Murray’s childhood urinary and fecal incontinence

and Murray’s father’s failure to have him examined by a

doctor even though encouraged to do so by Murray’s

grandmother. Ruby Bradford also testified that Murray was

a withdrawn child. Although Murray’s sister, Angela Hall,

was present and prepared to testify, counsel did not call her.

Nothing in the record suggests that she could have presented

information that was not already before the court or that

might have affected the results.

Murray’s claims that O’Neill neglected to interview his

immediate family members and closest friends and only

presented bits and pieces of the complete picture of his life

50 MURRAY V. SCHRIRO

and impairments are unsupported by the evidence in the

record. No attorney can present a complete picture of his

client’s life. In this case, however, O’Neill provided the state

court with sufficient evidence to paint a vivid picture of

Murray’s life. Murray cannot point to a single, material piece

of evidence that would have been determinative at

sentencing. Thus, we find that O’Neill’s performance, in this

regard, did not fall below an objective standard of

reasonableness under Strickland, much less that the state

court’s decision was an unreasonable application of

Strickland.

Murray further contends that O’Neill failed to obtain a

complete set of Murray’s school, employment, medical,

prison, and probation records. In particular, Murray argues

that O’Neill did not provide sufficient background

information to Dr. Potts and that additional experts should

have been hired to testify regarding organic brain damage.

Again, however, the record belies this contention. O’Neill’s

pre-sentence report contained a set of Murray’s prison records

from Alabama. The pre-sentence investigation report

included Murray’s prior criminal record. Likewise, the

information presented to Dr. Potts for use in conducting his

mental evaluation included Murray’s criminal, prison, and

school records. Furthermore, it appears that Dr. Potts

personally interviewed Murray regarding his medical history,

including previous difficulties with intense headaches and

seizures; conducted interviews with numerous individuals

who knew Murray; and had access to information relating to

the crime. The record does not support a finding that O’Neill

did not provide Dr. Potts with sufficient background

information. Furthermore, O’Neill had no information that

would have made resort to an additional expert necessary.

Dr. Potts was aware of Murray’s previous headaches and

MURRAY V. SCHRIRO 51

seizures and did not find them to be consequential, so there

was no reason for O’Neill to inquire further.

In sum, we find that the record does not support a finding

that the state court’s decision regarding the adequacy of

O’Neill’s performance in conducting the mitigation

investigation was based on an unreasonable determination of

the facts or an unreasonable application of Strickland.

Murray can point to no evidence that would suggest that the

state court’s decision was based on an unreasonable

determination of fact. The record shows that O’Neill pursued

diligently a number of avenues for obtaining background

evidence relevant to the mitigating factors that could assist in

Murray’s sentencing hearing. We affirm the district court’s

denial of Murray’s ineffective assistance of counsel claim.

C. Uncertified Issue—District Court’s Denial of Murray’s

“Motion for Leave to File a Second Amended Motion for

Writ of Habeas Corpus”

In addition to his Batson and ineffective assistance of

counsel claims, Murray has elected to brief an uncertified

issue, arguing that the district court abused its discretion by

denying his “Motion for Leave to File a Second Amended

Petition for Writ of Habeas Corpus.” That motion contained

sixteen claims—fifteen claims that had previously been

withdrawn and one additional new claim.6 The district court

denied Murray’s motion to amend because it found the

proposed claims to be duplicative, frivolous, and futile, and

6

The sixteen claims are numbers 6, 20–21, 23–27, 38, 41–46, and 48 in

Murray’s proposed Second Amended Petition for a Writ of Habeas

Corpus.

52 MURRAY V. SCHRIRO

determined that allowing the amendment would unduly delay

the proceedings and prejudice the respondents.

Murray contends that the state court’s failure to designate

with sufficient clarity why it did not decide Murray’s claims

on the merits makes federal review appropriate, and that his

claims are not futile. Furthermore, Murray argues that the

previous withdrawal of his claims from his federal habeas

petition to pursue post-conviction relief in state court did not

unduly delay the presentation of his claims to the district

court, particularly because the parties were the same in both

state and federal court and his withdrawal of claims was not

done in an effort to avoid procedural requirements.

We decline to grant Murray’s motion to expand the COA

because he has failed to make a substantial showing of the

denial of a constitutional right. The district court found that

the majority of Murray’s proposed claims would be futile. A

determination of futility contemplates whether, upon de

novo review, the amendment could present a viable claim on

the merits for which relief could be granted. See Carvalho v.

Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010)

(“When the district court denies leave to amend because of

futility of amendment, we will uphold such denial if ‘it is

clear, upon de novo review, that the complaint would not be

saved by any amendment.’” (quoting Leadsinger, Inc. v.

BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008));

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010); see

also Caswell v. Calderon, 363 F.3d 832, 838–39 (9th Cir.

2004). Furthermore, “proposed amendments [are futile when

they] are either duplicative of existing claims or patently

frivolous.” Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir.

1995). Thus, jurists of reason would not find debatable that

MURRAY V. SCHRIRO 53

a futile claim cannot be the basis for a substantial showing of

the denial of a constitutional right.

Murray argues that the district court erred in determining

that it would have been futile for him to amend his habeas

petition. Murray contends that federal review is not barred by

procedural default because there is no unambiguous

independent and adequate state ground. Specifically, Murray

asserts that the state court’s decision was ambiguous because

“it referenced more than one state procedural rule in

connection with more than one claim.”

The doctrine of procedural default provides that “a federal

court will not review the merits of claims, including

constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural

rule.” Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). This

doctrine is grounded in federalism, because federal courts

“will not review a question of federal law decided by a state

court if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to

support the judgment.” Coleman v. Thompson, 501 U.S. 722,

726–29 (1991). On the other hand, “if the decision of the last

state court to which the petitioner presented his federal claims

fairly appeared to rest primarily on resolution of those claims,

or to be interwoven with those claims, and did not clearly and

expressly rely on an independent and adequate state ground,

a federal court may address the petition.” Id. at 735; see also

Belmontes v. Ayers, 529 F.3d 834, 856 (9th Cir. 2008), rev’d

on other grounds by Wong v. Belmontes, 558 U.S. 15 (2009).

54 MURRAY V. SCHRIRO

1. Claims 6, 21, 23–27, and 42–46

Murray’s proposed claims 6, 21, 23–27, and 42–46 were

presented in a petition for post-conviction relief filed in

Arizona state court. Each of those claims was denied by the

state court as “precluded under Rule 32.2 of the Arizona

Rules of Criminal Procedure.” Rule 32.2 provides in relevant

part:

a. Preclusion. A defendant shall be precluded

from relief under this rule based upon any

ground:

(1) Raisable on direct appeal under Rule

31 or on post-trial motion under Rule 24;

(2) Finally adjudicated on the merits on

appeal or in any previous collateral

proceeding;

(3) That has been waived at trial, on

appeal, or in any previous collateral

proceeding.

Ariz. R. Crim. P. 32.2(a). We have explained that

[a] claim that has been found to be

‘precluded’ under subsection (a)(2) appears to

be a classic exhausted claim and may

therefore be subject to consideration in federal

habeas. . . . In contrast, a claim that has been

‘waived’ under subsection (a)(3) is

procedurally defaulted and therefore barred

from federal court consideration, absent a

MURRAY V. SCHRIRO 55

showing of cause and prejudice or

fundamental miscarriage of justice.

Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1999).

Similarly, the Supreme Court has recognized Arizona Rule of

Criminal Procedure 32.2(a)(3) as an independent and

adequate state ground that bars federal habeas review of

constitutional claims. Stewart v. Smith, 536 U.S. 856, 861

(2002). For such a state procedural rule to constitute an

adequate state ground, however, the rule must be “firmly

established and consistently followed.” Martinez, 132 S. Ct.

at 1316; Johnson v. Mississippi, 486 U.S. 578, 587–89

(1988). We have determined that Arizona Rule of Criminal

Procedure 32.2(a)(3) has been firmly established and

consistently followed, and Murray has not pointed to any

decisions “demonstrat[ing] that Arizona has become

inconsistent and irregular in its reliance on [that rule].” Ortiz

v. Stewart, 149 F.3d 923, 931–32 (9th Cir. 1998).

Accordingly, Murray’s claims have been procedurally

defaulted and allowing him to amend his federal habeas

petition would be futile, regardless of any potential

constitutional merit inhering in the underlying claims.

28 U.S.C. § 2254(b)(1)(A).

Here, Murray’s lone argument is that the state court’s

ruling was ambiguous and therefore an unambiguous,

independent, and adequate state ground does not bar habeas

review. The state court decision dismissing Murray’s claims

in his second petition for post-conviction relief stated that the

issues were “precluded under Rule 32.2 of the Arizona Rules

of Criminal Procedure.” Murray argues that the state court

decision was ambiguous because it failed to specify which

subsection of Rule 32.2 the decision relied upon and reliance

upon Rule 32.2(a)(2) would be properly before the district

56 MURRAY V. SCHRIRO

court as an exhausted claim. Murray is correct that the state

court did not specify which subsection of Rule 32.2 it was

relying on, but we do not think that ends the discussion. The

question becomes whether other information can be consulted

to determine if the state court clearly relied upon Rule

32.2(a)(3).

In Coleman, the Court observed that the Virginia

Supreme Court had granted a motion to dismiss the petition

for appeal without stating its reasons. 501 U.S. at 740.

There, the Court looked beyond the order granting the motion

to dismiss and found that the “motion was based solely on

Coleman’s failure to meet the [Virginia] Supreme Court’s

time requirements.” Id. The Court relied on the fact that the

underlying motion only discussed state-law time

requirements and concluded that it constituted an independent

and adequate state ground. Id.; see also Poland, 169 F.3d at

578–79 (examining prior proceedings to determine whether

the claims were procedurally precluded). However, we have

said that where underlying arguments present mixed

arguments of preclusion and waiver there is no “clear[] and

express[]” state bar to federal review. Valerio v. Crawford,

306 F.3d 742, 774–75 (9th Cir. 2002); Lambright v. Stewart,

241 F.3d 1201, 1205–06 (9th Cir. 2001) (citing Ceja v.

Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996)).

As in Coleman and Poland, the district court looked to the

petition for post-conviction relief underlying the state court’s

ruling. Here is the district court’s finding:

[A] review of [Murray’s] Rule 32 petition

reveals that, in arguing against summary

dismissal, he only addressed the reasons the

Withdrawn Claims had not been presented in

MURRAY V. SCHRIRO 57

his initial Rule 32 proceeding, i.e., why the

claims were not precluded as waived under

subsection (a)(3). He did not argue in state

court, nor does he argue in this Court, that the

claims had been previously adjudicated. This

Court concludes that the state court’s intent

regarding preclusion is plain, unambiguous

and necessarily rested on subsection (a)(3).

We have reviewed Murray’s petition and agree with the

district court. In his petition, Murray exclusively argued why

Rule 32.2(a)(3) did not preclude Arizona courts from

reviewing his claims. Indeed, Murray has not argued before

the state court, district court, or us that his claims had

previously been adjudicated. Thus, it does not “fairly appear”

that the state court relied upon Rule 32.2(a)(2). As such,

Murray’s claims are procedurally defaulted—and amendment

is futile—unless he can “show[] cause for the default and

prejudice from a violation of federal law.” Martinez, 132 S.

Ct. at 1316. Murray has not, however, attempted to show

cause and prejudice, even though he was given the

opportunity to do so by the district court. Since Murray has

not shown cause and prejudice, proposed claims 6, 21, 23–27,

and 42–46 are procedurally defaulted and amendment would

be futile. We therefore agree with the district court that

reasonable jurists would not find it debatable that these

proposed claims do not set forth a substantial showing of the

denial of a constitutional right. We decline to expand the

COA with respect to these claims.

2. Claims 38 and 41

Murray’s proposed claim 38 was also presented in a

petition for post-conviction relief that was filed in Arizona

58 MURRAY V. SCHRIRO

state court. Proposed claim 38 was also denied by the state

court as “precluded under Rule 32.2 of the Arizona Rules of

Criminal Procedure.” As such, Murray’s proposed claim 38

is procedurally defaulted for the same reason as claims 6, 21,

23–27, and 42–46 above.

Likewise, Murray’s proposed claim 41 is also

procedurally defaulted. Murray failed to present proposed

claim 41 to the state court and, like the claims discussed

above, it is barred by Arizona Rule of Criminal Procedure

32.2(a)(3). A claim is still barred by procedural default if

“the court to which the petitioner would be required to

present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred.”

Coleman, 501 U.S. at 735 n.1.

Since both claims 38 and 41 have been procedurally

defaulted, Murray can raise these claims on habeas review

only if he can show cause and prejudice. See Martinez,

132 S. Ct. at 1316. With respect to these two claims, which

allege ineffective assistance of trial counsel, Murray has

raised a Martinez claim that could potentially satisfy the

requisite cause and prejudice. In Martinez, the Supreme

Court stated that “[w]here, under state law, claims of

ineffective assistance of trial counsel must be raised in an

initial-review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” 132 S. Ct. at 1320 (emphasis

added). As in Martinez, Murray alleges that he could not

have brought his ineffective assistance of trial counsel

claims—claims 38 and 41—in his initial petition for state

post-conviction relief. Murray asks that this case be

MURRAY V. SCHRIRO 59

remanded to for the district court to determine whether he can

establish cause and prejudice to overcome his procedural

default.

Martinez cannot establish cause for Murray because he

cannot show a “substantial claim” of ineffective assistance of

trial counsel. Sexton v. Cozner, 679 F.3d 1150, 1157–58 (9th

Cir. 2012). Murray’s proposed claim 38 is based upon

O’Neill’s alleged failure to secure experts to discredit the

State’s witnesses at trial. As we stated above, under

Strickland, to establish an ineffective assistance of counsel

claim Murray must show (1) deficient performance and

(2) prejudice. Strickland, 466 U.S. at 687. Murray alleges

that a number of experts could have potentially discredited

various of the state’s witnesses: O’Neill relied on Roger

Wayne Murray’s expert witness who the jurors laughed at

during his cross-examination; O’Neill did not call an expert

to testify as to the proper methodology of collecting evidence;

O’Neill did not retain a doctor to testify about Murray’s pre-

existing ankle injury that may have discredited the State’s

footprint evidence; O’Neill did not retain an expert to

determine the identification of the unidentified fingerprints

that were found at the crime scene; O’Neill did not retain an

expert to determine the identification of the unidentified

fingerprints on the weapons used in the shooting; O’Neill did

not retain a DNA expert to analyze the blood at the scene; and

O’Neill did not retain a blood splatter expert to explain how

the victims’ blood may have gotten on Murray’s clothes.

Initially, we note that many of these decisions are likely

to have been strategic in nature, requiring us to provide trial

counsel with great deference. Strickland, 466 U.S. at 690.

Regardless, Murray cannot establish prejudice. As we have

recounted in the facts, the evidence against Murray was

60 MURRAY V. SCHRIRO

overwhelming. The evidence presented by the State at trial

showed that the spent twelve-gauge shotgun shells found in

Murray’s pants’ pocket and at the crime scene were fired by

the twelve-gauge shotgun recovered from the vehicle Murray

was driving. Each of the victims had suffered a shotgun blast

to the head; the blood on Murray’s shirt could have only

come from the victims. Further, Murray was found with the

victim’s couch cushion which contained rolled coins stamped

“Dean Enterprises, Grasshopper Junction, Kingman, Arizona,

86401” and a scanner and knob from the Grasshopper

Junction tow truck. Ignoring the mountain of other evidence

directly and indirectly pointing to Murray’s guilt, this

evidence alone is more than sufficient to implicate Murray in

the murders. Thus, even if O’Neill had offered the experts

Murray claims should have been presented, the evidence was

so overwhelming that it would have had no effect on the

jury’s verdict. As such, Murray cannot show that his

potential Martinez claim is underpinned by a substantial

ineffective assistance of trial counsel claim, since that claim

is wholly without merit.

Murray’s proposed ineffective assistance of trial counsel

claim 41 is also based upon O’Neill’s alleged ineffectiveness

for failing to question the trial court judge about his views on

the death penalty. Murray has offered nothing to suggest that

the trial court judge possessed any bias regarding the death

penalty.

Because Murray cannot rely upon Martinez to supply the

cause and prejudice for his procedural default of proposed

claims 38 and 41, these claims are also futile. We therefore

agree with the district court, and conclude that reasonable

jurists would not find it debatable that these proposed claims

fail to set forth a substantial showing of the denial of a

MURRAY V. SCHRIRO 61

constitutional right. We decline to expand the COA with

respect to these claims.

3. Claims 20 and 48

The district court also denied Murray leave to amend his

petition to include his proposed claim 20 based on Ring v.

Arizona, 536 U.S. 584 (2002). Relying on Schriro v.

Summerlin, 542 U.S. 348 (2004), the district court found this

claim to be futile since Murray’s direct appeal was final prior

to the Court’s decision in Ring. See id. at 358 (holding that

Ring “does not apply retroactively to cases already final on

direct appeal”). Because the district court was clearly correct,

proposed claim 20 is futile.

Finally, Murray’s proposed claim 48 is futile as

duplicative of claims already presented in his habeas

petition—claims 8, 13, 15–19, and 28. See Bonin v.

Calderon, 59 F.3d 815, 846 (9th Cir. 1995). Thus, none of

the additional claims Murray desires to include in his

proposed Second Amended Petition could present a viable

claim on the merits for which relief could be granted. See

Carvalho, 629 F.3d at 892–93.

Because jurists of reason would not find debatable that

Murray has failed to set forth a substantial showing of the

denial of a constitutional right, we deny his motion to expand

the COA.

IV. CONCLUSION

For the foregoing reasons, the district court properly

denied Murray’s petition for the writ of habeas corpus. The

judgment of the district court is AFFIRMED.